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BTEC Applied Law Unit 3 P1,P2,M1,D1
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first half of unit 3 btec law at distinction level
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Holly Lawton Unit 3Unit 3 Law P1, P2, M1, D1
Duty of Care
The idea of a duty of care in the tort of negligence has developed through judges making decisions in
cases. The start of our modern law of negligence was the case of Donoghue v Stevenson 1932. In this
case Mrs Donoghue went to a café with a friend, the friend bought her a bottle of ginger beer in which
was a dead decomposing snail, Mrs Donoghue only realised that the snail was in there after she had
drunk half of the beverage. Because of the impurities in the drink she was taken ill. She wanted to
claim for her illness but she had not been the one that bought the drink so she could not use the law of
contract. So she sued the manufacturers claiming that they owed her a duty of care. In the House of
Lords the judges set out a test for when a person would be under a duty. They said: “You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure
your neighbour.” They went on to explain this by saying: “Who then, in law, is my neighbour? Persons
who are so closely and directly affected by my act that I ought reasonably to have them in my
contemplation as being affected when I am directing my mind to the acts or omissions in question.”
This established the broad principles of liability. However, there have been a number of changes to the
detail. In Caparo v Dickman 1990 the neighbour test was replaced by the three part test :
Was the damage or harm reasonably foreseeable? Such as in Kent v Griffiths 2000
Is there sufficiently proximate relationship between the claimant and the defendant? Hill v Chief
Constable of West Yorkshire 1990 or Osman v Ferguson 1993
Is it fair, just and reasonable to impose a duty? Capital & Counties plc v Hampshire County
Council 1997
Reasonably Foreseeable – This depends on the facts of the case, though there are some general
principles which are used. In Kent v Griffiths 2000 a doctor called for an ambulance to take a patient
suffering from a serious asthma attack to hospital immediately. The ambulance control centre replied
‘okay doctor’. The ambulance, without a satisfactory reason, failed to arrive within a reasonable time.
The patient suffered a heart attack which could have been avoided if she had been taken to hospital
earlier. It was reasonably foreseeable that the claimant would suffer harm from the failure of the
ambulance to arrive. In Jolley v Sutton London Borough Council 2000 a boy aged 14 was paralysed
when a boat he was attempting to repair slipped on top of him. The boat had been abandoned on land
belonging to the council by a block of flats. The council knew that the boat was in a dangerous
condition and that children were likely to play on it. The House of Lords held that attempting to repair
the boat was not so very different from normal play, so the injury to the claimant was reasonably
foreseeable.
Not Foreseeable – In some cases the courts have decided that it is not reasonably foreseeable that the
claimant would suffer harm. For example, in Bourhill v Young 1943 a motorcyclist going too fast crashed
into a car and was killed. Mrs Bourhill, who was eight months pregnant, was about 50 yards away. She
head the accident, but did not see it. Afterwards she saw blood on the road and suffered shock and her
baby was stillborn. She claimed against the motorcyclist’s estate. The court decided that the
motorcyclist did not owe her a duty of care as he could not have reasonably foreseen that she would be
affected by his negligent driving. He did, of course, owe a duty of care to the car driver with whom he
collided. In Topp v London Count Bus (South West) LTD 1993 a driver left a bus unattended with the
keys in the ignition. The bus was stolen and driven dangerously causing an accident in which the
claimant was injured. The damage to the claimant was held not to be reasonably foreseeable.
Mrs Patel – She owes her customers, consumers and neighbours a duty of care. Mrs Patel
said she realised that the pastry was a little bit hard, but I think it’s unreasonable that
she should have foreseen that it may cause Mr Allenby to break his two front teeth; also Proximity –
it is not reasonable that it would result in Mrs Patel having to pay £8000 to repair Mr Even if the
Allenby’s teeth. harm is
Mr Patel – He owes his friend’s son a duty of care. The risk of the fridge falling on John is
reasonable and foreseeable, and Mr Patel should have dealt with this before he allowed
John into the back of his van.
, Holly Lawton Unit 3
reasonably foreseeable, a duty of care will only exist if the relationship of the claimant and the
defendant is sufficiently close. In Hill v Chief Constable of West Yorkshire 1990 a serial killer had been
murdering women in the Yorkshire area. The claimant’s daughter was the killer’s last victim before he
was caught. By the time of her death the police already had enough information to arrest the killer, but
had failed to do so. The mother claimed that the police owed a duty of care to her daughter. It was
decided by the House of Lords that the relationship between the victim and the police was not
sufficiently proximate for the police to be under a duty of care. The police knew that there might be a
further victim of the killer but they had no way of knowing who the victim might be. The situation was
different in Osman v Ferguson 1993 where the police officers knew that there was a real risk of an
attack on schoolboy, The attacker had a fixation about the boy and had been following him and causing
concern. There had been complaints to the police about the attacker’s behaviour. The boy’s father was
then murdered by the attacker and the boy was seriously injured. The court held that there was a
sufficiently close relationship between the police and the victim and the victim’s family. However, the
case did not succeed because it was ruled that it was not fair, just and reasonable to impose a duty of
care on the police.
Fair, Just and Reasonable – This is third part of the duty of care test allows the courts to decide that,
even though the harm was foreseeable and the parties were sufficiently close, there is no duty of care.
The courts are often reluctant to find that it is ‘fair just and reasonable’ to impose a duty of care on
public authorities. I the case of Hill v Chief Constable of West Yorkshire 1990 it was pointed out that
imposing a duty of care on the police could lead to policing being carried out in a defensive way which
might divert resources and attention away from the suppression of crime. Thus would likely lead to
lower standards of policing, not higher ones. The European Court of Human Rights has criticised
excluding liability in this way, so the extent to which the English courts will follow this decision is now in
doubt. Where the police or any other authority have their own actions created a new danger or
substantially increased the risk of an existing danger, then the courts are more likely to hold that it is
fair, just and reasonable to recognise a duty of care. In Capital & Counties plc v Hampshire County
Council 1997, the fire brigade had attended at the scene of the fire. A fire officer ordered that the
sprinkler system in the building be turned off. This caused the fire to spread and led to more serious
damage than if the system had been left on. In this situation it was fair, just and reasonable to
recognise a duty of care against the fire brigade.
Breach of Duty
Where under the three Caparo tests, there is a duty of care, the claimant still has to prove that the duty
of care has been broken.
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