Talk:Duty of care

There are three words with very similar meanings: due diligence, due care, and duty of care. If there are important distictions between these, I think that the articles should make them more explicit. Whether or not the words have exactly the same meaning, it might make sense to have them all in the same article - it might make it easier to understand the similarities and differences in the meanings. ike9898 13:00, 29 October 2005 (UTC)
 * Due diligence (in the U.S. at least) is more often used in the context of business transactions, particularly where a fiduciary relationship is involved. I think it tends to go a little beyond the standard duty of care. BD2412  talk 13:15, 29 October 2005 (UTC)
 * My understanding of the word is similar. To my mind, due diligence is usually used as a legal defence. Where one party claims that another party has violated a duty of some sort (in tort law or otherwise), the defendant is often allowed to argue "due diligence" as a defence, saying that they took reasonable steps to prevent the harm from occuring. DD is not all that different from standard of care which asks if the defendant acted reasonably. However, I don't think DD and DoC are similar at all. DoC is a word of art only used in tort law. DD is a bit broader than that. It's good that the issue was brought up, the articles could always use more work, but I don't think a merge is in order. --PullUpYourSocks 16:49, 29 October 2005 (UTC)
 * I would submit that legal due diligence is just one facet of the concept of due diligence, the other two being financial and cultural. In a business setting, all three should be done prior to a merger & acquisition, for example (although the latter is usually neglected, often with dire consequences". Therefore, I consider "due diligence" to much broader than just its legal implications. In light of this, I would advocate NOT combining the articles and even expanding the "due diligence" article to reflect this broader sense. --PeterVog 23:19, 29 October 2005 (UTC)
 * Duty of care is the basis of negligence. While it is true that a person who fails to deliver due diligence may cause loss and damage to another and so give that other a cause of action in negligence, there is no conceptual link between them at all and the idea of merging them is absurd. David91 09:15, 3 March 2006 (UTC)

DUTY OF CARE
I WOULD THINK THAT DUE DILIGENCE IS PERHAPS A LITTLE FAR OFF FROM DUTY OF CARE. ESTABLISHING THE EXISTENCE OF DUTY OF CARE REQUIRES THE OBSERVER TO AMONGST MANY OTHER THINGS, LOOK INTO MATTERS OF RELATIONSHIP. SEEING THAT THE RELATIONSHIP IS PROXIMATE ENOUGH TO WARRANT A DUTY OF CARE. A VIOLATION OF SUCH GIVES RISE TO NEGLIGENCE 07:27, 5 May 2006.

Please don't shout. We can all hear you. Legis 15:31, 10 October 2006 (UTC)

Trading whilst insolvent
I have removed the "see also" reference to trading whilst insolvent there is so much clear blue water between a general duty of care in tort and the statutory duty in some jurisdictions for a director to stop trading when it is clear insolvency cannot be avoided, that you can't see land from the middle. Legis 15:31, 10 October 2006 (UTC)


 * I guess people like me with less insight see farther.... in the ancient times of 3 months ago, the Trading whilst insolvent article had a link to Duty of care, so I thought there was a reason to link in the other direction. But that one is gone now, so I guess we're all happy campers in a consistent set of definitions... --Alvestrand 17:33, 10 October 2006 (UTC)

I'm going to be restructuring this mess
In case anyone is wondering what I'm up to, I'm restructuring this article so that it reflects what is really important --- the different legal approaches to finding a duty of care, versus the hodgepodge of various factual examples currently listed. If anyone has a problem with that please reply here.--Coolcaesar (talk) 05:18, 22 December 2008 (UTC)
 * Done. Managed to preserve most of the existing content one way or another, though it wasn't easy. --Coolcaesar (talk) 17:36, 22 December 2008 (UTC)

Standard of Care
The correct terminology is "standard of reasonable care", not "reasonable standard of care." —Preceding unsigned comment added by 69.228.14.163 (talk) 08:05, 19 March 2009 (UTC)

English/NZ Law
The history of the duty of care can be traced back to the following cases:

England Heaven v Pender - First, failed, attempt at rationalising the duty formulae. Donoghue v Stevenson [1932] - First, successful attempt at rationalising the duty formaulae. Fundamentally altered the law of negligence and is one of the most famous civil cases in English law. In this case Lord Atkin stated his now famous neighbour principle. Anns v London Borough of Merton - Here a two-stage test was suggested to build on the neighbour principle laid down in DOnoghue v Stevenson. This test asked firstly whether there was a relationship of sufficient closeness or proximity to give rise to a prima facie duty of care. And, secondly, whether there are any wider considerations which ought to negative, limit or reduce the scope of the duty. Initially Anns was accepted in England and Wales and also other common law jurisdictions. Governors of the Peabody Donation Fund v Sir Lindsay Parkinson - This case marked the beginning of the retreat from the Anns test. Here the court cautioned against treating the Anns test as definitive and said, rather, that novel categories of duty should be developed incrementally and by analogy to existing categories. Yuen Kun Yeu v Attorney-General of Hong Kong - Here the court said that Anns did not do what many people thought it did, nonetheless the Anns test came to be abandoned. This case also said that while forseeability is a necessary ingredient in any duty of care, it is not the only one. Heyman v Sutherland Shire Council - The court cautioned agains developing categories of duty of care by a massive extension of a prima facie duty, restrained only by indefinable stage two considerations. Caparo Industres Plc v Dickman - This case is the three stage test for deciding duty of care issues.

It is important to note that normally the duty issue is not a live one and is normally well resolved. It is only an issue in novel categories where the court is deciding whether or not a duty should be imposed.

New Zealand South Pacific Manufacturing Co Ltd v NZ Security Investigations Ltd  - Here the NZ courts applied the Anns test but reformulated the questions being asked at each stage of the inquiry. The first stage is internal and is concerned with the relationship between the parties. The second stage is external and is considered with any wider, extraneous policy considerations which ought to reduce, negative or strengthen the scope of such a duty. Rolls-Royce Ltd v Carter Holt Harvey Ltd - The NZ CA restated the principles in a way which rolls together the Anns and Caparo tests. 1. Whether, in all the circumstances, it is just and reasonable that a duty be imposed. 2. Internal considerations ; and 3. External considerations. In this case it was stated that any duty test is only a framework, a more or less methodical way of organising thoughts. The most important thing is that all considerations be weighed, and ultimately it is a matter for judicial decision. Couch v Attorney-General - Here Elias CJ said that no significant difference has resulted from the shift from the Anns test to the Caparo test.

Proximity Sutradhar v National Environment Research Council - This was a case where proximity was clearly lacking Rolls-Royce Ltd v Carter Holt Harvey - Here Glazebrook J tended to run proximity and the external considerations together. It is preferable that they are confined as much as possible to their own factors.

Duty to the plaintiff Palsgraf v Long Island Railway - A duty must be owed to the plaintiff. A person cannot build on a wrong to another. Any duty must be owed to the particular plaintiff in question. Bourhill v Young - Accepted Palsgraf into English law. Marx v Attorney-General - Accepted Bourhill into NZ law.

Duty Principles These are principles which can be seen to be underlying judicial decision when deciding when a duty of care should be imposed.

Promoting Autonomy Imposing a proportionate burden of liability Protecting the vulnerable Promoting coherence in the legal system as a whole

121.73.115.26 (talk) 21:03, 15 August 2011 (UTC)Shane