LEGAL EAGLE: Who has a ‘duty of care’ - and who to?

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What is the “duty of care” in accident cases? I keep coming across this phrase in the newspapers and on the internet in connection with accidents or historic abuse cases but I don’t follow what it is or when it applies.

The phrase “duty of care” can mean different things in different circumstances. In relation to accident claims it has a meaning which is usually – but not always – fairly clear.

If you think someone else caused you to have an accident and should pay compensation to you for it is necessary before you go further with any case to show that the person (or company or other organisation) that caused your injury had a duty of care towards you.  

The usual standard of the duty is to keep to a standard of reasonable care when you are doing anything that might foreseeably harm other people.

But to whom is the duty of care owed? In English law the test was laid down over 80 years ago, on 26 May 1932, in the House of Lords (now the Supreme Court).

In a case called Donoghue vs Stevenson, Lord Atkin, a judge in the court, said that people must not injure their neighbours.

In other words, the duty of care was owed to neighbours, he said.

He then asked: Who is my neighbour?

Answering his own question he said: “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 omissions which are called in question.”

Up until 1932 it was very difficult in law to sue someone for injuring you if you did not have a contract with that person.

But this decision made clear that no money needs to have changed hands for people to have responsibilities toward one another. And that they can be held to account if they fail in connection with those responsibilities.

Since 1932 the definition of what a “neighbour” is has widened and deepened, so that it now quite possibly includes people and classes of people Lord Atkin did not actually have in mind.

Interestingly, the case was a split decision. Of the five judges in the House of Lords, only two of the remaining four apart from Lord Atkin took the same view as him.  

The other two disagreed with him. Would things be much different today, you might wonder, if the decision had gone 3:2 the other way?