The Duty of Care

The Supreme Court's own formulation, in Jay Laxmi Salt Works, is that duty is the primary yardstick of tortious liability and its ambit keeps widening on the touchstone of fairness and the practicality of the situation.

The Indian case that shows a duty being refused

Most notes on this topic cite only cases where a duty was found. The examinable point is that a duty may be refused, and the leading Indian authority is one where it was.

Facts. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, decided on 17 January 1997. A pedestrian walking to his office was killed when a roadside tree maintained by the Municipal Corporation suddenly fell on him. His widow and children sued in negligence. The trial court decreed the claim and the High Court affirmed, holding that the Corporation's statutory power to plant and maintain roadside trees carried a corresponding absolute duty to keep them in proper condition, so that the claimants need not prove why the tree fell.

Held. The appeal was allowed and both decrees were set aside. The existence of a duty of care must be established before liability for negligence can arise; a duty is not fastened on a public authority merely because it has a statutory power; the fall of the tree was not reasonably foreseeable by the Corporation; and the damage was too remote. Because the claimants were poor and the money had probably been spent, the Court directed that the Rs. 45,000 already paid should not be recovered from them.

Why it matters here. Three propositions come out of it, and each is examinable: a power is not a duty; foreseeability is judged on what this defendant could reasonably foresee, not on hindsight; and the duty question is decided before the standard-of-care question is reached.

And the Indian case where a duty was found

Facts. Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750. The Clock Tower in Chandni Chowk, belonging to the Corporation, collapsed and killed three people. It was eighty years old, the mortar of its top storey had a life of forty to forty-five years, and the Corporation had never examined it for latent defects.

Held. The owner of a structure abutting a highway owes a duty to users of the highway to keep it in a safe condition. A properly maintained structure does not ordinarily collapse, so res ipsa loquitur applied and the burden lay on the Corporation to explain the fall. Its failure to test a building long past the life of its materials was negligence.

Why the two cases sit together. In Subhagwanti the danger was one the owner could and should have discovered by inspection; in Rajkot Municipal Corporation the Court held that the fall of a living tree was not foreseeable in the same way. Read together they show that the duty question turns on what this defendant, in this position, could reasonably be expected to know and to do.

Special situations

Omissions. The law is slower to impose a duty to act than a duty not to injure. A duty to act arises from a relationship, from control over the source of the danger, from an undertaking, or from the creation of the risk.

Public authorities. Rajkot Municipal Corporation is the Indian authority: a statutory power does not by itself create a common law duty of care.

Unborn children. A duty is owed to a child in the womb, actionable after birth, as chapter [Who May Sue] explains.

Rescuers. A person who negligently creates a danger owes a duty to those who come to the rescue, which is also why volenti non fit injuria does not run against a rescuer.

A worked example

A contractor digs a trench across a village road and leaves it open overnight.

To a villager who falls in, a duty is plainly owed: the harm is foreseeable, the relationship is proximate, and it is fair and reasonable to impose the duty on the person who made the hole.

To a person who is injured going in to pull the villager out, a duty is owed as a rescuer.

To the village panchayat, which loses money because a bus route is suspended, the answer is likely to be no: the loss is economic, the relationship is not proximate, and imposing a duty would open liability to everyone inconvenienced by the trench.

To the villager's employer, who loses his services, the answer is no for the same reasons, and chapter [Torts Affecting Personal Relations] explains why the old action for loss of services is gone.

What it does NOT mean

It does not mean foreseeability creates a duty. Proximity and the fairness of imposing the duty are separate questions.

It does not mean a public authority is liable whenever it has power to act. Rajkot Municipal Corporation holds the opposite.

It does not mean a duty is owed to the world. It is owed to persons in the class the defendant ought to have had in contemplation.

It does not merge with the standard of care. Whether a duty exists comes first; how much care it required comes next.

Quick revision

1. The neighbour principle from Donoghue v. Stevenson, (1932) AC 562: take reasonable care to avoid acts you can foresee would injure your neighbour, and a duty may exist without any contract.
2. Modern approach: foreseeability, proximity, and whether it is fair, just and reasonable to impose the duty.
3. Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1: duty is the primary yardstick and its ambit widens on the touchstone of fairness and practicality.
4. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552: a statutory power is not a duty; the fall of a tree was not foreseeable; the appeal was allowed.
5. Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750: the owner of a structure abutting a highway owes a duty to keep it safe.
6. Duties are slower to arise for omissions, and arise from relationship, control, undertaking or creation of the risk.
7. A duty is owed to an unborn child and to a rescuer.

Test yourself

1. What is a duty of care and how does a court decide whether one exists? 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 principle comes from Donoghue v. Stevenson, (1932) AC 562. Foreseeability alone is not enough, because it would make liability boundless, so a court asks two further questions: whether there is sufficient proximity between the parties, in the sense of closeness, reliance or assumption of responsibility, and whether it is fair, just and reasonable to impose a duty of that scope on that defendant. The Supreme Court's formulation in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, is that duty is the primary yardstick of tortious liability and that its ambit keeps widening on the touchstone of fairness and the practicality of the situation.

2. "A statutory power is a statutory duty." Comment with reference to Indian authority. The proposition is wrong, and the Indian authority against it is Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552. A pedestrian was killed by the fall of a roadside tree maintained by the Corporation, and both the trial court and the High Court held the Corporation liable, reasoning that its power to plant and maintain roadside trees carried a corresponding absolute duty to keep them safe. The Supreme Court allowed the appeal and set aside both decrees, holding that the existence of a duty of care must be established before liability in negligence can arise, that a duty is not fastened on a public authority merely because it possesses a statutory power, that the fall of the tree was not reasonably foreseeable by the Corporation, and that the damage was too remote. It nevertheless directed, on humane grounds, that the Rs. 45,000 already paid should not be recovered from the poor claimants.

3. Reconcile Subhagwanti with Rajkot Municipal Corporation. The two decisions turn on what the defendant could reasonably be expected to know and to do. In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, an eighty-year-old clock tower whose mortar had a life of forty to forty-five years collapsed and killed three people, and the Corporation had never tested it for latent defects; the Court held that the owner of a structure abutting a highway owes a duty to keep it safe, applied res ipsa loquitur and found negligence, because inspection would have revealed the danger. In Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, a living tree fell without warning and the Court held that no duty of the kind alleged arose and the fall was not reasonably foreseeable. The difference is discoverability: a decaying structure can be examined and a healthy tree cannot be watched leaf by leaf, so the first defendant could have prevented the harm by reasonable diligence and the second could not.