The duty to take reasonable care

Statistics on the Judicial website show a general downward trend in the number of civil cases filed annually in local courts over the past 10 years. Notwithstanding, even with COVID, the courts were still receiving more than five civil case filings per week on average.

Depending on your source, some estimates suggest that more than 95% of civil matters are settled out of court. On that basis, one can extrapolate that there are potentially over 5,000 civil actions initiated in the Cayman Islands annually, and since civil actions involve two or more parties, one can further extrapolate that up to 10,000 individuals (1 out of every 8 persons estimated to be living on the Island) could be dealing with resolving some type of civil wrong each year.

I found it interesting that the Honourable Premier invoked Lord Atkin’s neigbour principle during a recent appearance on Radio Cayman. The reference comes from what is perhaps the most famous civil case in English law, Donoghue v. Stevenson [1932]. It is the case where Lord Atkin famously said

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neigbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

The persons to whom we owe a duty to take reasonable care i.e. our “neighbour” is quite expensive. Lord Atkin’s dicta in 1932 was a massive development from the previous position largely based on privity of contract (doctor to patient, employer to employee).

Lord Bridge further refined this in Caparo Industries plc v. Dickman by adding a “fair, just, and reasonable” element to the proximity and foreseeability elements outlined by Lord Atkin almost 60 years earlier.

The importance of this to those in leadership is the context of “neighbour” and the recognition that these include your employees, customers, suppliers, visitors to your premises, other persons on the road … even if you have never met them.

But how often do we contemplate these individuals, and the duty owed to avoid injurious acts? Injury in this context is not confined to physical injury; it could be economic, psychiatric, reputational, or otherwise.

Does the general downward trend in civil matters making it to local courts over the last decade suggest that we are being good neighbours? Or is it that fewer cases are making it to court because there is greater recognition of the existence of a duty to take reasonable care, and more people are settling matters out of court instead of taking their chances?

Section 19 (1) of the Cayman Islands Constitution Order 2009, sets out the legal duty for public officials to act in a manner that is lawful, rational, proportionate, and procedurally fair.

Subsection 2 also imposes a duty to provide a written reason for any decision or act to any individual who may be adversely affected by the decision of a public official.

Increasingly, we are seeing a greater demand for accountability and justification for decisions of public officials around procurement for goods and services, employment, workplace safety, and general conduct.

The standard of proof in criminal matters is “beyond reasonable doubt” (unofficially 99% certainty); however, the standard of proof in civil matters is “on a balance of probabilities” (unofficially 51%). That means, the claimant must only prove that for the facts claimed, “it was more likely than not”.

Litigation can be time consuming and expensive. In a world that is becoming increasingly litigious, it behooves persons in business, and in public life to understand and appreciate those “neighbours” to whom a duty to take reasonable care is owed, and to consider whether our acts (or those we fail to take) meets the objective standard of a what is required of a reasonable person. ?