Duties of Care--Do they Really Exist?

Abstract

It is popularly believed that if A owes B a duty of care in negligence, A will not actually have a legal duty to be careful: A will merely be required to pay damages to B if she suffers loss as a result of A's being careless. We can call this the cynical view of duties of care and those who adopt it, cynics. However, it is possible to take a different view of duties of care in negligence, according to which if A owes B a duty of care of some description, A will actually have a legal duty to be careful. We can call this the idealistic view of duties of care in negligence and those who adopt it, idealists. This article explains the importance of the debate between idealists and cynics over the nature of duties of care in negligence and goes on to argue that the cynical view of duties of care in negligence is, in fact, wrong and that the idealistic view of such duties should be preferred.