Table of Contents
The tort refers to a civil wrong, which is committed against an individual or group of individuals, and can even comprise the legal entities. These wrong-doings primarily entail the harms caused to people, especially in those areas of interest, which has been protected by them. This is done by using the bindings of the law. The infringement of this law and the protected interest by any means make the wrong-doer liable to be charged for the damages. The most significant manner in which tort can be adequately measured is through the facts. Hence, it may focuses on omitting or at least an act from the defendant’s end. Thus, as a result of which damages may be caused to the claimant in the form of such a harm that may lead to the attraction of a legal liability. This tort is significantly different from the contract law as well as the criminal law and is hence dealt solely by the civil courts. The Tort law comprises varied aspects namely Negligence and Economic Torts along with those of claims made on Trespassing, Nuisance, Breach Of Confidence, Defamation, and Occupiers Liability. The most vital sub-components of the Negligence element with respect to the Tort law further consists of the ‘Duty of Care’, ‘Causation’, ‘Breach of duty’, and ‘Harm or Injury’. Therefore, in this context, two types of remedies i.e. Injunction and Damages are taken into due consideration.
The essay, therefore, aims at discussing the concept of ‘Duty of Care’ and the manner in which it can be portrayed as “an unnecessary fifth wheel on the coach”. Furthermore, the ‘Liability in Negligence’ has also been adequately discussed in the essay with the support of the relevant cases of the modern times. It also produces an in-depth interpretation of the cases that led to the establishment of the concept. This is followed by various others, which contributed largely in improving the overall functioning, thereby, ascertaining its success in the present world.
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The Concept of Duty of Care
According to report presented by Hobart Community Legal Service, Duty of Care is a concept, which falls under one of the vital elements of the Tort law, i.e. Negligence. There are varied factors associated with this subcomponent of this particular law, one of which is the area, in which the plaintiff has suffered the damage such as economic, physical, or mental harm. It also entails the reason behind the harm being caused to the defendant along with his/her susceptibility to the damage that has taken place. Besides, the relationship factor between the defendant and the plaintiff in comparison with the work relation also plays a significant role in the assessing the components of the Duty of Care, while operating under the tort law. Lastly, the factors of this concept also consist of the moral as well as ethical considerations. Hence, this further takes into account the human rights considerations, coherency as well as consistency that exists within the relationships, in addition to the legal principles.
More, agreed with the concept and further stated that Duty of Care can be regarded as the foremost tool, which can be used for the purpose of determining the extent of liability that exists in the element, negligence. Therefore, the description of this concept as provided by David Own clearly depicts that the duty portal is a specific arena, through which all sorts of claims related to negligence needs to pass. It has further been observed that in the modern era, the concept of Duty of Care has a lot to do with the accident law as well as particularly on the law of product liability.
Contextually, the case of Caparo Industries plc v Dickman  2 AC 605, as discussed by Hartshorne focuses on providing a clear understanding of the confusions along with the conflicts that are related to the Duty of Care. In this context, a case was filed in opposition to the auditor of Fidelity by Caparo after the electronics company has successfully completed a process of takeover. The primary reason for filing of the case was that Dickman, one of the auditors of Fidelty committed negligence at the time of preparing the financial accounts. Hence due to which the claimant had to face a certain amount of losses. However, the judgement given by the House of Lords highlighted the relationship as well as the gap between the elements and negligence with its sub-component Duty of Care. In addition, it was also mentioned that it was a case of negligence. Subsequently he was not charged with penalties pertaining to the tort law of Duty of Care. Lord Oliver, therefore, explained the case as, “It is not a duty to take care in the abstract, but a duty to avoid causing to the particular plaintiff [the old word for claimant] damage of the particular kind which he has in fact sustained”. To this, Raz added that similar situation was evident even in the case of Rylands v. Fletcher, wherein an independent duty was observed to have been imposed on the defendant for compensating the harms caused.
The breach of this Duty of Care as stated in the report of Rottenstein Law Group LLP implies that the failure of an individual or even a company for the purpose of adhering to the code of conduct. Hence, this can result in harming others through their act of negligence. When a case as such is lodged in the Court of Justice, both the plaintiff as well as the defendant is asked innumerable questions for contributing to the making of an unbiased and justified decision. This, in turn, helps to determine on whether the defendant is truly a convict or must be safeguarded from being held accountable for the grave consequences of negligence. For justifying the fact that all the factors associated with the concept needs to be sufficed for the court. This is essential, as it helps the court to take the right decision. Therefore, certain cases can be mentioned. For instance, one of such cases is that of Vaughan v Menlove (1837) 3 Bing NC 467, for which the court had taken up the objective test for making an unbiased decision. This was due to the fact that the defendant was unable to produce proper and justifiable judgements to prove his innocence. However, in the case of Blake v Galloway  3 All ER 315, a decision of breaching the Duty of Care can be made only when the defendant shows high carelessness or recklessness towards their job roles.
Establishment of the Concept: Donoghue v Stevenson
Based on the Scottish Law Reports, the concept of Duty of Care was first generalised at the time when the House of Lords was giving judgement for Donoghue v Stevenson. Thus, it was recognised as, ‘snail in the bottle case’. The reason behind this name was that the plaintiff, Ms May consumed a certain amount from a ginger beer bottle, which her friend had gifted her. The bottle contained a snail in it. However, this was not visible from outside. Later on, she complained with respect to suffering from gastroenteritis and sued the manufacturer, Mr David Stevenson. The case could not be filed for breach of contract since the product was purchased by Donoghue’s friend and not by her. This was the time when the court stated that the defendant could be charged with breaching the duty of care, for which Stevenson was liable to pay the compensatory amount to the claimant.
The report of British Institute of International and Comparative Law further highlighted that House of Lords in this case, designed and enforced the tort law of negligence. Hence, based on this law, it is must for the manufacturers to consider a Duty of Care, especially for the customers. The judgement was observed to have been made on the generalised view in order to “take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…[i.e.] persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or 1 Deakin, Johnston and Markesinis Markesinis and Deakin’s Tort Law, Oxford University Press, 5th edition, 2003 p74 2  AC 562 2 omissions which are called into question”.
Furthermore, it had been mentioned in the report of Jamie Ball that the main issue for the case of Donoghue v Stevenson was whether a manufacturer can be charged for Duty of Care. This was mostly related to pertaining of the services being offered to the ultimate customers. To this, Lord Atkins took a positive decision and justified it by stating that no neighbours should be hurt, for which it is essential to provide a reasonable amount of care. This is relating to the omissions leading to others’ injury, which can be averted to the utmost level possible. This has been agreed in the article of CILEx Law School Limited, as per which the case of Donoghue v Stevenson has been termed as the neighbour principle. Although the principle of Duty of Care under the tort law of negligence was first applied in the case of Heaven v Pender , it proved to be unsuccessful in the initial instance. However, it was later in the case of Donoghue v Stevenson , the law was observed to be successfully incorporated for making the decision.
However, in the past, the viewpoints of Buckland and Winfield proved that the concept was of no use and disapproved its effective implementation in the legal cases then. This case had been handled by various judges, Lord Moncrieff being the first one, who favoured the arguments of Mrs Donoghue. While in the second phase, the Scottish Court of Session gave just the opposite decision, disapproving the concept of the Duty of Care. Ultimately, the House of the Lords took up the case after Mrs Donoghue was proved a pauper. Lord Atkins, later gave the final judgement, successfully establishing the concept of Duty of Care. Although David Stevenson had died by then, his executors were held liable to pay a sum of £200 to the claimant as compensation. This would have amounted to around £12,300 in the present era. This, therefore, provides a clear understanding that Duty of Care, a sub-component of the tort law of negligence is of great importance at present. This is to enable the manufacturers and sellers to take care of the well-being of the customers. Additionally, it is also important for safeguarding the manufacturers for preventing themselves from being punished due to the breach of duty in case they are not actually at fault.
The Duty of Care as “an Unnecessary Fifth Wheel on the Coach”
According to Díaz, there are numerous components of liability existing in the Common Law, among which the Duty of Care is considered to be the most debatable area in law. Although it is of immense help and support in the present scenario. However, there were certain controversies evident in the legal framework regarding its usefulness in the past context. In this world of tremendous modernisation, the concept of Duty of Care is observed to represent certain unique characteristics that are unusual pertaining to the existing system. In the oldest legal pattern, which is in the Roman law, such a category of tort law did not exist nor was it found to be of any specific use in continental systems. This was, therefore, the reason for considering the concept of Duty of Care to be ineffective from the viewpoints of the civil lawyers with respect to the law’s scientific adequacy and utility as well. Besides, at a certain point of time, this law posed negative impacts on the others operating the field of law. Hence, Professor Buckland had categorized this tort law of negligence as “an unnecessary fifth wheel on the coach, incapable of sound analysis and possibly productive of injustice”. Furthemore, Oliphant & Nolan stated prior to the successful implementation and operation of the concept in the case of Donoghue v Stevenson. This indicated that the law did not have any existence, as no need as such was felt by the civil lawmakers, enforcers, and implementers of the modern world. Contradictorily, it is regarded as one of the most important tools used by the individuals operating under the civil law in this modern world. Hence, this is mostly used for the purpose of determining the actual individual or group of individuals, who can be held responsible for conducting the acts of negligence. It also indicates the situations, at which the convicts need to be protected from the liability of facing the compensating consequences.
Oliphant & Nolan has further opined that the Duty of Care can be considered as a concept, which mostly takes into consideration the objective of protecting the defendants from the adverse consequences. This includes being held accountable for causing negligence related damages. Contextually, the concept at certain instances is observed to be incomprehensible, as it hinders the rationale behind the actual aim of the negligence element of the tort law. Therefore, as per the thoughts of the scholar and lawmakers in the past, Duty of Care can be deconstructed or even completely removed from the legal system. This may in turn, reduce the overall level of complexity at least to some extent. Furthermore, Plunkett agreed that the criticisms related to the importance of the concept were mostly due to the fact that the key target is to avoid the foreseeable risks that have not yet been evidenced. These risks are therefore related to the functioning of the duty of the care, i.e. to prevent the facing of liability, which may or may not even take place in the future. It was in this context, been explained by Stone “A duty towards the plaintiff then means that the defendant ought reasonably to have him in contemplation as likely to be affected by the conduct in the question; in short, the defendant ought reasonably to have anticipated injury to him. But is not that, in any case, one essential element of what is meant by the requirement of ‘negligence’ itself”.
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Concluding the overall discussions, it can be inferred that the tort law monitors the activities of the people on a regular basis. This is mostly in order to obtain in-depth insights relating to the injuries or damages caused by an individual upon another’s physical, emotional, or economic well-being. One of the most common elements of the law is the negligence law, the breaching of which may lead to compensation-related issues. In this context, Duty of Care has been discussed in a detailed manner in this essay, as it is one of the prevalent concepts that people face largely in the present scenario. In the past, no such concepts existed in the legal framework, as people never had to face such situations during that particular time-period.
Additionally, the concept of Duty of Care was established with the case of Donoghue v Stevenson, despite the fact that trail for incorporating this was initially observed during the case of Heaven v Pender . However, it was observed that it had failed drastically. Although in the present day scenario, Duty of Care is the most significant tool for determining whether a person is convict and must be punished for the act of negligence. Additionally, it can also be inferred that it is still regarded as a contradictory factor with respect to its non-existence and non-approval in the past. Therefore the arguments for this non-approval help to view the Duty of Care as “an unnecessary fifth wheel on the coach”.
- James Plunkett, The Duty of Care in Negligence (First edn, Bloomsbury Publishing 2018)
- Ken Oliphant and Donal Nolan, Tort Law: Text and Materials (6th edn, OUP 2017)
- British Institute of International and Comparative Law, ‘Introduction to English Tort Law’  BIICL 1
- CILEx Law School Limited, ‘Negligence: The Duty of Care – General Principles and Public Policy’  CLS 23
- Daniel More, ‘The Boundaries of Negligence’  4.1 TIL 339
- John Hartshorne, ‘Confusion, Contradiction and Chaos within the House of Lords Post Caparo v Dickman’  LRA 1
- Joseph Raz, ‘Responsibility and the Negligence Standard’  30.1 OJLS 1
- Julio Alberto Díaz. ‘The Duty to Take Care and Liability for the Act of the Things in Comparative Law’  UFC 305
- Sofia University, ‘General Principles of Tort Law’  ELearn 3
- E-Lawresources, ‘Breach of Duty in Negligence Liability’
- Hobart Community Legal Service, ‘Negligence and the Duty of Care’ (Hobart Legal, 2013)
- In Brief, ‘The Law of Tort’
- Jamie Ball, ‘Donoghue v Stevenson 
- Rottenstein Law Group LLP, ‘What is “Breach of Duty”?’
- Scottish Law Reports, ‘Donoghue v Stevenson’ accessed 17 March 2018
- Supreme Court Library Queensland, ‘Donoghue v Stevenson  AC 562’