What factors does a court now take into account in determining whether or not to impose a duty of care?

What factors does a court now take into account in determining whether or not to impose a duty of care?” Discuss


By the nineteenth century the courts had held that there was liability for failing to take care in a number of different situations which seemed to have little in common. The courts had evolved the concept of duty of care as the test to determine whether there should be liability for carelessness. If there was a duty to take care, then there was a liability for carelessness. Where there was no duty to take care, there was no liability.

A duty of care is a duty to take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure persons who are so closely and directly affected by your act or omission that you ought reasonably to have them in contemplation as being so affected when directing your mind to the act or omission in question. So in this report I had to identify the main factors that courts consider while deciding to impose duty of care. To do that at first we need to know about the tort law, because the duty of good care is a part of tort law.

Tort Law

A tort, in common law jurisdictions, is a social wrong. Tort law compacts with circumstances anywhere an individual’s actions have unjustly caused someone else to go through loss or harm. Tort law is unlike to criminal law, which deals with conditions where a person’s actions cause harm to society on the whole. A claim in tort may be brought by anyone who has suffered loss. Criminal cases are likely to be bringing by the state, though personal trials are doable.

“Tort law is also differentiated from equity, in which a petitioner complains of a violation of some right. One who commits a tortious act is called a tortfeasor. The equivalent of tort in civil law jurisdictions is delict. Tort may be defined as a personal injury; or as “a civil action other than a breach of contract.”[1]

A person who suffers a tortious injury is entitled to receive “damages”, usually monetary compensation, from the person or people responsible or liable for those injuries. Tort law defines what a legal injury is and, therefore, whether a person may be held liable for an injury they have caused. Nevertheless, tort law in addition distinguishes on purpose torts, wherever an individual has intentionally performed in a manner that hurts another, and “strict liability” or quasi-tort, which permits recovery under certain incidents without the need to express negligence.

Duty of care

In tort law, a duty of care is a lawful duty required on a person requiring that they stick to a set of realistic care while performing any works that could predictably damage others. It is the first part that must be founded to carry on with an action in negligence. The plaintiff must be able to show a duty of care imposed by law which the defendant has violated. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by process of law between individuals with no existing direct association, but in due course become related in some way, as defined by common law.

According to John Fleming ‘the basic problem in the tort of negligence is that of limitation of liability’. He points out that negligence is different from some torts such as assault or defamation in that it is not tied to a particular relationship, type of harm, or the protection of a particular interest.

To authorize the burden of liability for any loss experienced by anyone as the result of sloppiness would have forced harsh and random a constraint on a person’s freedom of action by revealing the actor to the viewpoint of random responsibility.

Prior to 1932, liability in negligence was restricted by the finding of a duty of care on a case by case basis—primarily in situations where there was a pre-existing relationship between the parties such as guest and innkeeper or employer and employee. In Donoghue v Stevenson (1932)[2], Lord Atkin provided the first general rule for determining duty of care. The case is also significant for its groundbreaking ‘narrow rule’ which established that manufacturers owe a duty of care in negligence to the ultimate consumers of their products.

Duty of care may be judged a formalization of the social contract, the contained responsibilities held by persons towards others in society. It is not a condition that a duty of care be defined by law, though it will frequently build up through the jurisprudence of common law. So Duty of care is

· The first of the three main elements of negligence.

· It is determined by proximity, foreseeability, and policy.

· It is most likely to be established in cases of positive acts which cause physical injury or property damage.

· Finding duty of care is not the same as finding liability.

Even though the duty of care is easy to recognize in situations like shock, it is crucial to know that a duty can be still found in conditions where petitioners and defendants may be divided by remoteness of space and time.

The decision of the South Carolina Supreme Court in Terlinde v. Neely (1980), later cited by the Supreme Court of Canada in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. [1995] illustrated that:

“The plaintiffs, being a member of the class for which the home was constructed, are ….. placing this product into the stream of commerce, the builder owes a duty of care to those who will use his product, so as to render him accountable for negligent workmanship.”

Factors currently considered by the courts

We will now look in more detail at the factors which the courts nowadays take into account in order to determine whether a duty to take care should be imposed. Although the idea of a general duty of care is now widely accepted, there are significant differences among the common law jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else’s problems, so there must be some reasonable limit to the duty of care. The problem is where to set that limit.

Physical proximity

In several recent cases the courts have emphasized that there can be no duty of care if there is not a sufficiently close and direct relationship between the plaintiff and the defendant, and they seem to have taken a stricter view of what constitutes proximity or propinquity than in earlier cases.

“An association which granted loans to people for building houses was held not to be under any legal duty of care to house owners to ensure that the houses were built according to plans approved by the local authority because the association had no direct control over the builder employed by the house owner.”

“The Commissioner of Deposit Taking Companies who had power to register and de-register such companies was held not to be under any legal duty of care towards depositors to ensure that registered companies did not misuse their deposits, because the Commissioner had no direct relationship with the depositors. “

“One of the reasons why county police who were investigating several murders of women were held not to be under any legal duty to a young woman who was murdered was that they had no direct relationship with her – she had never sought police protection, and they did not know of her existence.”

Reasonable foreseeability

Whilst reasonable foreseebility of harm has been retained as an essential requirement for a duty to take care, a more conservative, less liberal, attitude to what is reasonably foreseeable has also been adopted by the courts:

“A big retail company which had bought an unused building in a city in Scotland, planning to convert it into a supermarket, had left it empty and without security, for a period of five weeks. The House of Lords held that the company could not reasonably foresee that the building would be broken into by vandals who would light a fire in it which would spread to neighboring properties.”

“A man who left a bus unlocked, with the key in the ignition, was held not to have been able to foresee that a stranger would get into the bus, and drive it off, eventually injuring a person on the road.”

Public policy

In Rondel v Worsley, it was saidthat it would be contrary to public policy to impose a duty to take care because of the undesirable consequences that that would follow for the administration of justice, has been maintained and applied to situations other than the administration of justice:

“One of the reasons why the House of Lords declined to hold that the police in a county in England where there had been a number of murders of young women owed no duty to a woman who became a later victim of the serial killer was that this would be contrary to public policy, since it would cause the police to be more cautious and slow in making their enquiries and would impede police investigation of criminal activity.”

Practices in the world

United Kingdom

Now, the leading judicial test for a duty of care in the United Kingdom was found in the judgments of Caparo Industries plc v Dickman,[3] in which the House of Lords set out the following three-part test:

· Harm must be a “reasonably foreseeable” result of the defendant’s conduct;

· A relationship of “proximity” between the defendant and the claimant;

· It must be “fair, just and reasonable” to impose liability.

United States

Each of the 50 U.S. states is a separate independent free to grow its own tort law under the Tenth Amendment, and because Erie Railroad Co. v. Tompkins (1938)[4] ruled that there is no general federal common law, there are several tests for finding a duty of care in United States tort law.

Foreseeability test

In many states, like Florida and Massachusetts, the only test is whether the harm to the plaintiff from the defendant’s actions was foreseeable The Supreme Court of California, in a well-known mass opinion by Justice David Eagleson, pass judgment on the idea that foreseeability alone comprises an ample basis on which to rest the duty of care: “Experience has shown that . . . there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages.”

Multi-factor test

California has developed a compound matching test consisting of numerous issues which must be cautiously considered beside one another to resolve whether a duty of care exists in a negligence action. The underlying facts are generalized and examined in the better circumstance of general public policy.[5] The original factors as stated were as follows:

· The foreseeability of damage to the damaged party;

· The amount of assurance the party experienced injury;

· The proximity of the association between the defendant’s manner and the injury suffered;

· The ethical guilt emotionally involved to the defendant’s behavior;

· The policy of stopping future harm;

· The level of the weight to the defendant and the outcomes to the society of imposing a duty of care with resulting liability for breach;

· And the accessibility, cost, and occurrence of indemnity for the risk involved.

· The social usefulness of the defendant’s conduct from which the injury arise.

Some states simply copied California’s factors but modified them, like Michigan, while others developed different lists of factors, such as Tennessee:

· the foreseeability of the harm or injury;

· the possible magnitude of the potential harm or injury;

· the importance or social value of the activity engaged in by the defendant;

· the usefulness of the conduct to the defendant;

· the feasibility of alternative conduct;

· the costs and burdens associated with the alternative conduct;

· the relative usefulness of the alternative conduct;

· And the relative safety of the alternative conduct.

The standard by which the duty is measured

If a duty exists, the plaintiff must show that the defendant breached it. Breach involves testing the defendant’s actions against the standard of a reasonable person, which varies depending on the facts of the case. For example, physicians will be held to reasonable standards for members of their profession, rather than those of the general public, in negligence actions for medical malpractice.

However, it is possible that the defendant took every possible precaution and exceeded what would have been done by any reasonable person, yet the plaintiff was injured. If that is the case, the plaintiff cannot recover in negligence. This is the key difference between negligence and strict liability. If strict liability attaches to the defendant’s conduct, then the plaintiff can recover under that theory regardless of whatever precautions were taken by the defendant.

Particular types of cases under which the duty usually exists


As noted above, product liability was the context in which the general duty of care first developed. Manufacturers owe a duty of care to consumers who ultimately purchase and use the products. In the case of Donoghue v Stevenson [1932] AC 562 of the House of Lords, Lord Atkin stated:

“My Lords, if you’re Lordships accept the view that this pleading discloses a relevant cause of action you …. the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care. ”


In the case of landlords, the level of their duty of care to those who came on their grounds mixed depending on whether a person was classified as an intruder, licensee, or invitee. This rule was eventually abolished in some common law jurisdictions. For example, England enacted the Occupiers Liability Act 1957. Similarly, in the 1968 landmark case of Rowland v. Christian,[6] the Supreme Court of California replaced the old classifications with a general duty of care to all persons on one’s land, regardless of their status. After several controversial cases, the California Legislature enacted a statute in 1985 that partially restored immunity to landowners from some types of lawsuits from trespassers.

Professional standard of care

In certain industries and professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent manufacturer of a product, or the reasonably prudent professional in that line of work. Such a test (known as the ‘Bolam Test’) is used to determine whether a doctor is liable for medical malpractice. The standard of care is not relevant in many cases and is only there to help the defendant.

Some common examples include:

Medical standard of care

Treatment sets applied within public hospitals to ensure that all patients receive appropriate care regardless of financial means.

1. Diagnostic and conduct procedure that a doctor should tag on for a definite type of patient, illness, or clinical condition.

2. A doctor also has a “duty to inform” a patient of any material risks or fiduciary interests of the doctor that might cause the patient to think again a procedure and if the patient can prove that if informed, he would not have gone through with the procedure. As it relates to mental health professionals standard of care, the California Supreme Court, held that these professionals have “duty to protect” individuals who are specifically threatened by a patient.

Person of below average intelligence

A person of inferior aptitude is held under common law as same as a reasonable careful person, to push them to use an augmented effort of liability to their community, Vaughn v. Menlove: “The standards of the law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men.”


From the discussion above we can understand that the judgment of duty of care depends on these factors.

· physical proximity;

· fairness, justice and reasonableness;

· consistency with public policy;

· gradualism or instrumentalism; and

· Operation as distinct from policy making.

But these findings are solely based on the laws from British laws and US laws. I could not find any helpful information on Bangladeshi jurisdiction for duty of care. It would’ve helped me a lot to understand and find out a better result for this report. But nevertheless, most of the available resources showed that the above points are the main factors court take into account in determining whether or not to impose a duty of care.


1. http://pearsonrowe.co.uk/personal-injurywhat-is-tort-lawhtml

2. C. Sappideen, & P. Vines, “Fleming?s The Law of Torts” 10th Edition (Soft cover), March 2011

3. http://en.wikipedia.org/wiki/Donoghue_v_Stevenson

4. Donoghue v Stevenson [1932] A.C. 562, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1

5. John S. Allee, (Dec 1, 1984), “Product liability”, (Pg 2-39), Law Journal Press.

6. Curran v Northern Ireland Co-ownership Housing Association [1987] AC 718. (Reading 6.9)

7. Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175. (Reading 6.10)

8. Hill v Chief Constable of West Yorkshire [1989] AC 53. (Reading 6.11)

9. Smith v Littlewoods Organisation [1987] AC 241. (Reading 6.12)

10. Topp v London Country Bus (South West) Ltd [1993] 3 All ER 448. (Reading 6.13)

11. Rondel v Worsley [1969] 1 AC 191 (Reading 6.3)

12. Hill v Chief Constable of West Yorkshire [1989] AC 53. (Reading 6.11)

13. Caparo Industries plc v Dickman [1990] 2 AC 605

14. http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution

15. http://supreme.justia.com/cases/federal/us/304/64/case.html

16. Jupin v. Kask, 849 N.E.2d 829, 835 (Mass. 2006).

17. McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla. 1992).

18. http://online.ceb.com/CalCases/C3/48C3d644.htm

19. Thing v. La Chusa, 48 Cal. 3d 644, 667 (1989).

20. Ballard v. Aribe, 41 Cal. 3d 564, 572 n.6 (1986)

21. Rowland v. Christian, 69 Cal. 2d 108 (1968) JAMES DAVIS ROWLAND, JR., Plaintiff and Appellant, v. NANCY CHRISTIAN, Defendant and Respondent.

22. Parsons v. Crown Disposal Co., 15 Cal. 4th 456 (1997)

23. Buczkowski v. McKay, 441 Mich. 96, 1100-1101; 490 N.W.2d 330 (1992).

24. Hubbard, Bill, Jr. (2009). American Boundaries: the Nation, the States, the Rectangular Survey. University of Chicago Press. p. 55.

25. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

26. Gilson v. Metropolitan Opera, 5 N.Y.3d 574 (2005).

27. Donoghue v Stevenson [1932] A.C. 562, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1

28. Rowland v. Christian, 69 Cal. 2d 108 (1968). http://online.ceb.com/calcases/C2/69C2d108.htm

29. Calvillo-Silva v. Home Grocery, 19 Cal. 4th 714 (1998). http://online.ceb.com/CalCases/C4/19C4t714.htm

30. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976)

31. Vaughn v. Menlove, 3 The Common Law, 108 (Little, Brown, & Co. 1881

[1] http://pearsonrowe.co.uk/personal-injurywhat-is-tort-lawhtml

[2] http://en.wikipedia.org/wiki/Donoghue_v_Stevenson

[3] Caparo Industries plc v Dickman [1990] 2 AC 605

[4] http://supreme.justia.com/cases/federal/us/304/64/case.html

[5] Ballard v. Aribe, 41 Cal. 3d 564, 572 n.6 (1986)

[6] Rowland v. Christian, 69 Cal. 2d 108 (1968). http://online.ceb.com/calcases/C2/69C2d108.htm