I return’. Now which of these three do you think seemed to be a neighbour to him who fell
among the robbers?”
He said, “He who showed mercy on him.” Then Jesus said to him, “Go and do likewise”.Legally Wrongful Good and bad behavior. To love your neighbor like you love
yourself is good moral behavior. Not helping the robbed and injured man lying on
the side of the road from Jerusalem to Jericho will, in general, be seen as unethical
behavior. But does that imply that the priest and the Levite can be held liable in a
court of law for the consequences of not helping the victim? Tort law deals with the
consequences of wrongful behavior. But what islegallywrongful? Boys throwing
stones through the window of the local bakery? A fight in a nightclub where people
get injured? Not coming to rescue a person at the edge of drowning legally
wrongful?
Duty of CareIn tort law, these questions are addressed under the heading of duties
of care. Behavior is wrongful if it constitutes a breach of a duty of care. But how can
we know whether there is a duty of care? Did the priest and the Levite owe a duty of
care to the robbed man? Did Stevenson owe a duty of care to Mrs. Donoghue?
The notion of a duty of care plays a central role in the common law of tort. It is
used to demarcate the range of persons, their relationships, and the kinds of damage,
for which compensation can be claimed. It was not obvious beforehand that Mrs.
Donoghue was protected by a duty of care against mistakes made in Stevenson’s
factory. If Mrs. Donoghue had fallen ill and her employer had suffered an economic
loss because of that (Mrs. Donoghue was irreplaceable), could the employer then
claim damages from Stevensonfor that kind of damage? In other words, did
Stevenson have a duty of care towards Mrs. Donoghue’s employer? These are the
kinds of questions that are dealt with under the heading of duties of care.
6.3.2 The Learned Hand Formula
The criteria to determine whether a particular person or organization owes a duty of
care towards another person or organization form a central topic of tort law. It is not
very easy to say something in general about this issue. Over 60 years ago, in the
case ofUnited Statesv.Caroll Towing, 159 F2d 169 (2nd Cir. 1947), the American
Judge Learned Hand formulated a number of rules of thumb to determine what
standard of care would be required by a shipowner to ensure that a ship does not
break loose of its mooring ropes:
to provide against resulting injuries is a function of three variables:
- the probability that she will break away;
- the gravity of the resulting injury, if she does;
- the burden of adequate precautions.
6 Tort Law 107