Duty Of Care

In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner, as defined by common law (meaning case law).
Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law.
The first element of negligence is the legal duty of care. This concerns the relationship between the defendant and the claimant, 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 these relationships, according to the principles developed by case law.
The principles delineated in Caparo V Dickman specify a tripartite test:
Was the harm reasonably foreseeable?
Was there a requisite degree of proximity between the claimant and the defendant
Is it fair, just and reasonable to impose a duty of care; are there precluding public policy concerns?
There are a number of distinct and recognisable situations in which the courts recognise the existence of a duty of care. Examples include one road-user to another employer to employee manufacturer to