Duty of Care.

What is the Duty of Care?
Duty of care is the obligation to exercise a level of care towards an individual, as is reasonable in all the circumstances, to avoid injury to that individual or his property.

The Duty of care is therefore based on the relationship of the different parties, the negligent act or omission and the reasonable foreseeability of loss to that individual.

A negligent act is an unintentional but careless act which results in loss. Only a negligent act will be regarded as having breached a duty of care. Whether an Act is negligent can only be considered in context. Liability for breach of a duty of care also very much depends on what the public policy is at the time the case is heard.

In Scotland this area of the law is called Delict while in England, Wales and Northern Ireland it is called the law of Tort. Delict and tort differ from the law of contract. Contracts generally specify the duties on each of the parties and the remedy if these duties are breached. Upon entering into a contract, the parties obtain specific rights and certain duties. In delict or tort these duties exist through the nature of the parties relationship regardless of the contractual obligations.


Under both jurisdictions, delict and tort try to strike a balance between the individual's wrongful conduct and compensating the victim for his loss.

Although much of the law of delict and tort has been developed by Courts, there are also now a number of statutory rules which apply for example to employment, disability discrimination, health and safety, data protection and occupier's liability.

Many of the general principles and the law of negligence are now more or less the same under the two jurisdictions but there are a number of differences between them, for example, the law of defamation in Scotland in comparison to libel and slander in England, and the law of nuisance.

Any relevant case law or decisions of any of the UK courts are often generally relevant and applicable to other similar situations regardless of where they are situated.

The basic principles of Duty of Care

The leading Scottish case of Donoghue v Stevenson 1932 SC (HL) 31 set out principles that still form the basis for establishing a duty of care under Scots and English law.

These are:

Does a duty of care exist?
This depends on the relationship between the parties. A duty of care is not owed to everyone but only to those who have a sufficiently close relationship. There is no liability if the relationship between the parties is too remote. Closeness in this context of course implies also "professional" relationship or responsibility.

Is there a breach of that duty?
Liability only arises if the action breaches the duty of care and causes a loss or harm to the individual which would have been reasonably foreseeable in all the facts and circumstances of the case.

Did the breach cause damage or loss to an individual's person or property?
Originally, when Donoghue was decided, the duty of care was thought only to be applicable to physical injury and damage to property, however this has now extended in some cases to where there is only economic loss.

In a Social Care context a Duty of care will usually exist where the Social Care worker has some professional or work responsibility for delivering a service to an individual. A breach would arise where a negligent act or omission to act resulted in harm to that individual and the harm was foreseeable.

Recommended reading: The Health and Social Care Hanbook - explains a rangge of health and Social Care law
Important Note: This note is not a definitive guide to the law relating to duty of care in either England and Wales or Scotland. It aims to give a general description only. Anyone concerned about Duty of Care or a breach of a duty of care is advised to seek legal advice.