Duty of Care

Duty of Care

Private Investigators need to be familiar with the concept of Duty of Care (what a reasonable person should do in a particular situation).

In English tort law, an individual may be owed a Duty of Care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur. The idea of individuals owing strangers a Duty of Care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. Its origins can be found in the case of Donoghue v Stevenson, where a woman succeeded in establishing a manufacturer of ginger beer owed her a Duty of Care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.

Generally, a Duty of Care arises where one individual or group undertakes an activity which could reasonably harm another, either physically, mentally, or economically. This includes common activities such as driving (where physical injury may occur), as well as specialised activities such as dispensing reliable economic advice (where economic loss may occur). Where an individual has not created a situation which may cause harm, no Duty of Care exists to warn others of dangerous situations or prevent harm occurring to them; such acts are known as pure omissions, and liability may only arise where a prior special relationship exists to necessitate them.

The first element of negligence is the legal Duty of Care. This concerns the relationship between the defendant and the plaintiff, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the plaintiff in all the circumstances of the case. There are two ways in which a Duty of Care may be established:

the defendant and claimant are within one of the ‘special relationship’; or

outside of these relationships, according to the principles developed by case law.

There are a number of situations in which the courts recognise the existence of a Duty of Care. These usually arise as a result of some sort of special relationship between the parties. Examples include

one road-user to another

employer to employee

manufacturer to consumer

doctor to patient

solicitor to client