Duty of Care: Duty in Law Overview

Duty of Care: Duty in Law Overview

The first thing claimants wishing to bring a negligence claim need to establish is that the defendant owed him or her a duty of care of some kind. This post will deal with the duty in law element in general terms. The duty in law issue is sometimes called the notional duty issue. Another series of posts will focus on specific areas where duty in law is an issue.


As stated in the negligence overview post, the duty in law issue is concerned with whether there is or should be a rule of law that allows or bars recovery in a given category of case. From this, it follows that there are two defining characteristics of notional duty. First, notional duty is a question of law; second, notional duty questions should be framed in general or categorical terms.

The question of whether a duty in law exists should always be framed in categorical terms. For example, should the police owe a duty of care to the makers of an emergency call, or should an auditor owe a duty to an investor buying shares in a company in reliance on the audited accounts? These are categorical cases because they are not dependent on the particular facts of a particular case. Suppose an issue can be framed in these categorical terms. In that case, it has the potential to be a duty in law, irrespective of its substantive content. Because the categorical nature of duty in law is its only defining characteristic, duty in law is a very open-ended issue.

The fact that notional duty is a question of law has some important implications. Questions of law are more straightforward to appeal than questions of fact, and court decisions on questions of law have precedential force. Moreover, there are areas of negligence law where the courts can choose whether to categorise an issue as a duty in law issue or as a question of fact. There are situation-specific pros and cons of taking either approach. Making the issue a duty in law question allows the higher courts to control the lower courts better and enables litigants to know if a duty exists or not, i.e. this is good for certainty. On the other hand, making it a legal question reduces the courts' ability to respond to the facts of particular cases, leading to inflexibility and the drawing of arbitrary lines.

When is duty in law an issue?

Ever since Donoghue, duty in law has not been an issue in straightforward cases where the defendant's positive act caused the claimant physical injury or property damage. So in simple negligence cases like this duty in law is not an issue and the courts move on to the other elements in the negligence enquiry. However, there are five types of case where duty in law is an issue.

(i) Nervous shock cases

Nervous shock cases are those where the claimant's damage was caused by psychiatric means. A detailed set of duty in law rules has developed to govern whether or not a duty in law is owed in cases of this kind. But, it is worth noting that it has been argued that these rules are unnecessary. One school of thought argues that these cases should simply be dealt with at the remoteness stage by asking whether damage to the particular claimant was reasonably foreseeable. Some common law countries deal with it as a question of foreseeability, as a question of fact. English law currently has legal rules for these cases.

(ii) Pure economic loss cases

Pure economic loss cases are those where the claimant has not suffered a personal injury or property damage, but only a purely financial loss. In those cases the general rule is that no duty of care is owed, with two exceptions:

          Hedley Byrne v Heller [1964] AC 465

The defendant had assumed a responsibility towards the claimant.

          White v Jones [1995] 2 AC 207

The claimant had suffered an economic loss when he lost a legacy due to a solicitor's negligence in drawing up a will.

(iii) Omissions cases

Omissions cases are those where the claimant complains, not that the defendant made things worse for them, but that the defendant failed to make things better. The claimant complains that the defendant failed to confer a benefit on the claimant. The general rule is that there is no duty of care. Still, there are some exceptions, and the most important is where the defendant assumed a responsibility towards the claimant. There are also some other more limited exceptions.

(iv) Deliberate intervening conduct cases

Deliberate intervening conduct cases are those where the defendant argues that either the claimant's or a third party's conduct has broken the chain of causation between the defendant's negligence and the claimant's injury. This question can be categorised as legal causation. Still, the courts now prefer to deal with this question under the duty in law heading. Especially when the intervening conduct is deliberate, the courts prefer to deal with this as a question of duty in law.

Deliberate intervening conduct cases are another example of the courts' ability to choose where in the negligence enquiry to deal with an issue. The courts decided to deal with it at a more abstract categorical level. This is an excellent example of where a choice between approaches is possible. It is also worth noting that the typical intervening conduct case is also an omission case. Nonetheless, the two issues should still be dealt with separately.

(v) Public policy

Sometimes the courts will not grant a duty for public policy reasons where they otherwise would on ordinary negligence principles. A good example is the so-called combat immunity which applies to anything done in the course of military operations against an enemy, which was most recently discussed in:

          Smith v Ministry of Defence [2013] UKSC 41, [2014] AC 52

This is justified on the grounds that the existence of a duty of care might impede the conduct of the military in wartime. This applies even in positive conduct cases causing physical injury and is a rule that is based purely on public policy.

How is the duty in law issue decided?

How do we decide in a particular situation if a duty is owed? The difficulty comes in new cases where there is no clear standing rule. The courts do not use a general test for a duty of care as this is a red herring. Instead, the courts determine whether a duty exists in the same way that they do any other legal issue — they reason by analogy from existing authorities and then consider the substantive arguments for and against recognition of the duty in this type of case.

It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised … [T]he characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case.

          Robinson v CC West Yorkshire [2018] UKSC 4, [2018] AC 736 [27] (Lord Reed)

Lord Diplock's judgment in Home Office v Dorset Yacht [1970] AC 1004 (Lord Diplock) is a paradigm example of this kind of common law reasoning.

So central to the duty in law enquiry is reasoning by analogy from similar or analogous cases, that, the duty in law enquiry tends to start by asking which of the above-mentioned categories the particular case fall into.

When trying to decide if a duty in law exists, the most crucial thing is to identify the duty category into which the case falls and then apply the rules that have built up from the cases in that category to decide if a duty exists. You should move from the general to a particular category of duty in law case as quickly as possible. This is the key to answering any problem question which raises duty-in-law issues. A case might have two categories of issue, e.g. an omission and a deliberate intervening act, in this case, analyse both separately because they are two separate issues.

The role of public policy considerations in duty cases

Public policy arguments look beyond the relationship between the parties and the interpersonal justice between them to the broader consequences of the decision.

It is quite common for courts to invoke public policy arguments in duty cases even when there is a more principled basis for deciding the case. Hill v CC West Yorkshire is an excellent example of this: the police were not liable because of the serial killer's third-party intervening conduct. There was no need for public policy arguments about the consequences of the decision for the police. Thus, when evaluating the significance of public policy arguments in duty cases, it is essential to ask whether the judges' policy arguments in a particular case have actually made any difference. You'll find very few cases even turn on public policy. Robertson studied cases and found that a vast majority of novel duty cases were decided on the basis of interpersonal justice rather than public policy arguments.

          Robertson, Policy-based Reasoning in Duty of Care Cases (2013) 33 LS 119

Among the academics, there are three views on the appropriateness of taking into account public policy arguments. People like Robert Stevens and Alan Beever believe that it is wrong to take public policy considerations into account. On the other hand, Jane Stapleton believes that judicial reasoning would positively be improved if public policy arguments took centre stage. Finally, Andrew Robertson believes that public policy arguments do have a legitimate role to play in the duty in law enquiry but that this should be a limited role. Robertson argues that the recognition of a duty in law should never be founded on community welfare arguments. But, where there is a prima facie case for a duty from the situation's interpersonal justice, public policy concerns can legitimately act as a veto.

          Stapleton, Duty of Care Factors: A Selection from the Judicial Menus in Cane and Stapleton (eds), The Law of Obligations (1998)

          Robertson, Justice, Community Welfare and the Duty of Care (2011) 127 LQR 370

The courts have certainly not taken to the first view that it is wrong to take public policy consideration into account. This is the current view of the UKSC on the role of public policy, somewhere between the two extremes:

[I]t is important to understand that [policy] discussions are not a routine aspect of deciding cases in the law of negligence, and are unnecessary when existing principles provide a clear basis for the decision … But the exercise of judgement about the potential consequences of a decision has a part to play when the court is asked to decide whether a novel duty of care exists...

          Robinson v CC West Yorkshire [2018] UKSC 4, [2018] AC 736 [69] (Lord Reed)

Criticism of the duty of care concept

          Nolan, Deconstructing the Duty of Care (2013) 129 LQR 559

Nolan's essential argument is that the duty concept now obscures the understanding of negligence law and hinders its rational development. He proposes what he calls the deconstruction of duty, a process by which the different issues currently living under the duty umbrella are separated out and reclassified. Instead of coming under duty, the issues would be reclassified under the other negligence inquiry elements: fault, damage, causation, remoteness, and the defences.

The argument that the duty of care is superfluous has a pretty long history and pedigree. It can be traced back as far as the 1935 LQR article by Buckland The Duty to Take Care in which he famously described the duty of care as 'the fifth wheel on the coach.' Buckland was a roman lawyer and knew about civilian legal systems. He and understood that the duty of care concept simply doesn't exist in most civilian legal systems, so he believed that if they could do without it, so can we.

Nolan felt that the arguments previously made for the duty of care concept's superfluousness had not been successful. So, he tried to make the case stronger by showing exactly how the various issues currently dealt with under the duty umbrella could be reclassified in the other negligence enquiry stages. Moreover, Nolan showed how the use of the duty concept has negatively impacted the reasoning quality in negligence cases. He argued that dealing with various issues under the notional duty umbrella meant that different problems got mixed up and muddled — separating out those issues would better enable courts to address the central issues of law raised by different fact scenarios.

The core of Nolan's argument is that first, we don't need the duty of care; second, the duty of care has had a detrimental effect on negligence law.

          Buckland, The Duty to Take Care (1935) 51 LQR 637