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Navigating the Boundaries: Understanding the Duty of Care in English Tort Law


Negligence law forms a crucial aspect of the legal landscape, and at its core lies the concept of duty of care. This blog post will delve into the intricate world of duty of care, examining its historical development, pivotal legal tests, and the evolving landscape of negligence liability. As we explore these facets, it becomes evident that the duty of care is not a static concept; rather, it adapts to societal changes, technological advancements, and the ever-shifting dynamics of human interactions.

Duty of Care: Setting the Stage

The foundation of a negligence claim hinges on whether the defendant owed the claimant a duty to exercise reasonable care. Duty of care acts as a regulatory device, determining who can pursue a negligence action and under what circumstances. In a world of limitless demands for protection against negligent conduct, duty of care serves as a boundary, a threshold that must be crossed for legal action to ensue.

Historical Development

Negligence liability has evolved over centuries, with defined relationships such as doctor-patient or blacksmith-customer initially governing liability. However, as the Industrial Revolution brought about social, industrial, and technological changes, the need for a general test to determine liability arose. It was not until 1932 that the landmark case of Donoghue v Stevenson introduced the "neighbour test."

The Neighbour Test

In Donoghue v Stevenson, the House of Lords established the "neighbour test," stating that a duty of care arises based on reasonable foreseeability of damage to the claimant in the daily interactions of social and business life. While influential, this test alone proved insufficient to explain cases where the court found no duty despite foreseeable harm.

Expansion of Negligence Liability

The "neighbour test" was initially limited to cases involving physical damage. However, in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964], the House of Lords broadened the scope, allowing a duty of care not to cause economic loss. The subsequent Anns v Merton [1978] two-stage test further expanded liability, but concerns over insurance difficulties and tort encroaching on contractual areas led to a retraction in the 1970s and early 1980s.

Retraction of Negligence

The judicial retraction aimed to check and pull back the expanded liability. This was prompted by factors such as challenges in obtaining insurance and the encroachment of tort into traditionally contractual domains. Brennan J's statement in Sutherland Shire Council v Heyman (1985) highlighted the need for an incremental approach, rejecting broad general principles in favor of developing specific rules within each category of negligence.


The evolution of duty of care in negligence law reflects the dynamic nature of society, technology, and human interactions. From the foundational "neighbour test" to the two-stage Anns v Merton framework and subsequent retractions, the courts navigate a complex landscape to strike a balance between protecting individuals from negligence and preventing undue expansion of liability. As we continue to witness societal changes, the duty of care will undoubtedly remain a cornerstone in determining when one person owes another a duty to exercise reasonable care.

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