The Duty of Care

In one line

A defendant is liable in negligence only if the law says he owed this plaintiff a duty to take care, and a duty is not created merely because harm was foreseeable.

In the wording a student can write in an exam: a duty of care is a legal obligation to take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one's neighbour, a neighbour being a person so closely and directly affected by the act that one ought reasonably to have him in contemplation; the modern approach asks in addition whether there is sufficient proximity between the parties and whether it is fair, just and reasonable to impose a duty, and the existence of a statutory power does not by itself create one.

Where the modern law begins

The general principle comes from Donoghue v. Stevenson, (1932) AC 562, which the Supreme Court of India cites by that reference in Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552.

Facts. A manufacturer's product reached an ultimate consumer, who was injured by its condition. There was no contract between the manufacturer and the consumer, which is why the claim could not be brought in contract. The Supreme Court recites the case in those terms in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1.

Held. The manufacturer was liable to the ultimate consumer on the principle of a duty to take care. A duty in tort may therefore exist although there is no contract between the parties, which is the proposition the whole modern law of negligence is built on.

The formula that came out of that case is the neighbour principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, and your neighbour is a person so closely and directly affected by your act that you ought reasonably to have him in contemplation.

Why foreseeability alone is not enough

If everyone owed a duty to everyone who might foreseeably be harmed, liability would have no boundary. Courts have therefore added two further questions.

Proximity. Is there a sufficiently close and direct relationship between the parties? Physical closeness, a relationship of reliance, an assumption of responsibility and the directness of the harm all bear on it.

Fairness, justice and reasonableness. Is it fair, just and reasonable to impose a duty of this scope on this defendant for the benefit of this class of plaintiffs? This is where a court weighs the burden on public authorities, the risk of indeterminate liability, and the existence of other remedies.