The nature of a fiduciary’s duty of care has been a contested one. Different jurisdictions characterise this duty differently. This article argues that the duty is not a tortious duty. In addition to being equitable in origin, it is properly conceived as a fiduciary duty. Recognising a fiduciary duty of care enhances the protection of a fiduciary relationship. This ensures that a principal’s vulnerability to both his fiduciary’s disloyalty and mismanagement is equally mitigated. It is also argued that a fiduciary duty of care would help resolve the overlap between a fiduciary’s duty to act bona fide in the best interests of his principal and a fiduciary’s duty of care – an overlap that courts have at times struggled to delineate persuasively. The article also addresses the ambit of such a fiduciary duty of care, given that not every duty of care owed by a fiduciary ought to be a fiduciary duty.
Tan, Weiming, Peering Through Equity’s Prism: A Fiduciary’s Duty of Care or a Fiduciary Duty of Care? (July 19, 2021). Journal of Equity.