1. Duty of care
The law does not make people responsible for everyone at all times. A person only owes a duty to those who qualify as his “neighbour” in law. He must take reasonable care to avoid acts or omissions that he can reasonably foresee would be likely to injure his neighbour. Neighbours are people so closely and directly affected by a person’s actions that he ought to have them in mind when performing those actions.
The plaintiff must first show that the defendant owed him a duty to take reasonable care. This may be straightforward in familiar categories, but in new categories the court develops the law incrementally and takes a holistic view of foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty.
(i) Reasonable foreseeability of harm
Would a reasonable person in the defendant’s position have realised that their act or omission might cause harm to someone in the plaintiff’s position? If the risk of harm was far-fetched, fanciful, or only recognisable after the event, a duty of care will usually not arise.
It is not necessary that the defendant should have foreseen the exact sequence of events. What matters is whether harm to the plaintiff, or to a class of persons that includes the plaintiff, was reasonably foreseeable.
The court may also ask whether the kind of damage suffered was the kind a reasonable defendant should have had in contemplation.
(ii) Relationship of close proximity between the parties
Is there a sufficiently “close and direct” relationship between the parties? It asks whether the connection between the defendant and the plaintiff was close enough that the defendant should, in law, have had the plaintiff in contemplation when acting or failing to act. Proximity may arise from physical closeness, temporal closeness, or the circumstances of the relationship, such as an employer–employee relationship.
A person usually cannot claim just because the defendant was careless towards someone else and the plaintiff was also affected. The law generally requires the plaintiff to show a close and direct relationship of his own with the defendant, not merely that some harm happened as a result of the defendant’s conduct.
(iii) Fair, just, and reasonable circumstances
Even if harm was foreseeable and the parties were close, the court must decide if it is fair, just and reasonable to impose a legal burden. This part of the analysis allows the court to consider the wider consequences of recognising liability in a particular type of case.
In deciding whether a duty is fair, just and reasonable, the court may consider a number of factors. These include the burden that liability would place on the defendant, the relative exposure to risk of the parties, the availability of insurance or contractual protection, floodgates concerns, the coherence of the wider legal system, and the practical difficulties that litigation may create.
In some cases, wider public interests are especially important. For example, in claims involving public bodies, the court may refuse to impose a duty because doing so could interfere with the proper performance of important public functions.
Illustrative example
A manufacturer of ginger beer may owe a duty of care to the final consumer even though the consumer did not buy the drink directly from the manufacturer. This is because it is reasonably foreseeable that, if the drink is contaminated or carelessly prepared, the final consumer may suffer injury.
The relationship is also sufficiently proximate because the manufacturer intends the product to reach the final consumer in the same form in which it left the manufacturer, with no reasonable opportunity for intermediate examination. In that situation, the consumer is a person so closely and directly affected by the manufacturer’s act that the manufacturer ought reasonably to have had the consumer in contemplation.
It is also fair, just and reasonable to impose a duty in these circumstances because the manufacturer is in the best position to take care in preparing and packaging the product, while the final consumer is vulnerable to harm and usually cannot inspect the contents for safety. For that reason, the law recognises a duty on the manufacturer to take reasonable care to ensure that the drink is safe for the final consumer.
