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Summary Negligence: A Duty of Care
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Topic 1 of Tort Law. Used by a 1:1(1st) student.
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The Duty of Care in Negligence: General Principles, Acts, and Novel CasesDefinition of Negligence:
– Duty of Care: a legal obligation placed on a person to take reasonable care when performing an activity. A
physical activity causing physical injury is more likely to impose the Duty of Care.
– Negligence: the breach by the defendant of a legal duty to take care, causing some recoverable damage
to the claimant.
– Tort: a civil wrong which entitles the injured party to a remedy (protected interests: Bodily integrity,
Mental security, Personal freedom, Real property (land), Personal property, Economic interests,
Reputation, Intellectual, Privacy).
The Development of new torts:
Until the 20th century, mainly trespass torts, actions that intentionally and directly cause physical harm. This
included battery and assault. Through the Industrial Revolution and the 19th century, the courts were willing to say
there should be a Duty of Care to not behave carelessly and cause physical injury. Liability in negligence in the
development of middle-class consumers in the Victorian era was difficult for courts, as there wasn’t a general Duty
to take care. May be influenced by changes in society or be statutory creatives, for example, ‘product liability’
(Donoghue v Stevenson [1932] AC 562), and ‘privacy’ (Campbell v MGN [2004] UKHL 22; [2004] AC 457].
Steps in a Negligence Case:
Damage => Duty => Breach => Causation in Fact => Causation in Law => Defences => Damages
The claimant must prove the defendant owes the claimant a duty of care, that the defendant has acted in breach
of that duty, and, as a result, the claimant has suffered damage which is not too remote a consequence of the
defendant’s breach. Robinson v Chief Constable of West Yorkshire Police [2018] states a precedent-based approach
for novel cases. Formulating a test for novel duty cases has been difficult, with Lord Roskill in Caparo v Dickman
[1990] saying ‘it has now to be accepted that there is no simple formula or touchstone to which recourse can be
had in order to provide in every case a ready answer.
History - The Development of the Duty of Care
Pre-neighbour principle, courts were reluctant to impose a general principle, as Victorian culture believed in
individuals taking responsibility for their own welfare/collectivism was unheard of. If a defendant assumed
responsibility, then they could be held liable when in a contract, but not imposing on defendants a gratuitous duty
to look after others (shown in Winterbottom v Wright [1842], with the privity of contract fallacy).
Donoghue v Stevenson [1932] AC 562:
A buys Mrs D a bottle of ginger beer in a bottle that is not transparent. Mrs D poured half of the ginger beer into a
glass and drank it. She then poured the remainder into the glass and saw the remains of a decomposing snail. She
claimed to have suffered physical illness (gastro-enteritis) as a result.
Donoghue options:
– Friend (purchaser): no fault and no contract
– Minchella (retailer): no fault and no contract
– Stevenson (manufacturer): at fault, but no contract, and no authority imposing duty of care
The House of Lords ruled in favour of Donoghue, distinguishing from Winterbottom and rejecting the privities of
contract fallacy, that manufacturers hold ultimate duties towards consumers. A neighbour would be an individual
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,at risk of physical injury as a result of your actions, so ‘reasonable care’ must be taken regarding acts that someone
can ‘reasonably foresee’.
Thus, Lord Atkin created the ‘neighbour principle’ for the existence of a legal duty to take care, the modern tort of
negligence. Over time, the courts aimed to restrict the scope of negligence to avoid the floodgates of litigation
being opened. Plus, the courts were concerned with the crushing liability if a defendant was liable for a very large
amount which would be economically unfair to do so. Thus, until the mid-1980s, the neighbour principle was
applied, and tort grew into the financial and psychological well-being of patients. The subsequent reduction in the
expansion of negligence was mirrored politically, where a philosophy of individualism and contraction of state
responsibility occurred under Thatcherism.
“‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour’… 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.” ([580], Lord Atkin, obiter).
There is two principle to the neighbour principle:
– Reasonable foreseeability: a duty would be owed where a defendant ought reasonably to foresee their
failure may cause injury to another.
– Test of neighbourhood: duty owed when the claimant ‘closely and directly’ affected, where there was
‘proximity’
However, the law treats liability for acts different from liability for omissions, and besides identifying the
defendant’s ‘neighbour,’ it is necessary to identify the type of loss which the ‘neighbour’ is likely to suffer.
Subsequent Cases:
Hedley Byrne v Heller [1964] AC 465 – established liability for financial loss caused by negligent misstatement
Hedley Byrne were advertising agents. A customer put in a large order, and Hedley Byrne asked Heller & Partners
Ltd (the customer’s bank) about the creditworthiness of the customer. Heller replied “without responsibility on the
part of this bank” the customer was “considered good for its ordinary business engagements”. Heller did not
receive a fee for the information provided. The customer went into liquidation and Hedley Byrne lost £17000.
Hedley Byrne sued Heller & Partners.
House of Lords Held a defendant would owe a duty of care if they had assumed responsibility for the accuracy of
the information and the claimant had relied on this to their detriment. Thus, the disclaimer provided by Heller
meant it was not reasonable to rely on the accuracy of the information. The Lords said there was a difference
between negligently made statements causing financial loss and negligently manufactured products causing
personal injury.
Home Office v Dorset Yacht [1970]
The House of Lords imposed a duty on the defendant to prevent damage being caused by the actions of others.
The guards had liability, and there was ‘special relations’ between the Home Office and Borstal boys so the Home
Office was liable for its failure to prevent the boys’ causing damage (plus a high degree of foreseeability).
Anns v Merton [1978] AC 728 – Lord Wilberforce’s ‘two-stage test’
Merton LBC approved building plans for a block of maisonettes which showed foundations “three feet or deeper”.
When flats were built in 1962 the council failed to check that the building matched the plans. By 1970, there were
cracks in the wall, sloping of the floors and other defects
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, Lord Wilberforce’s ‘two-stage test’:
1. Is there, between the claimant and defendant, a sufficient relationship of ‘proximity and neighbourhood’
such that the defendant can reasonably foresee that carelessness on his or her part would be likely to
cause damage to the claimant? If yes, a prima facie duty of care arises
2. Are there any considerations which should nevertheless lead the court to deny a duty of care, or to limit
its scope, in these particular circumstances
This test was much more generous; a presumption that a duty would exist unless clear policy objections could be
found. The House of Lords ruled that the duty applied, and the defendant did owe a duty of care to ensure the
foundations were of the correct depth. Lord Wilberforce introduced a two-stage test for imposing a duty of care.
The Lords, in 1990, used the 1966 Practice Statement [1966] to overturn its own decision in Anns.
Caparo v Dickman [1990] 2 AC 605 – a test for novel duty cases, the ‘threefold’ test
Where a claimant cannot point to a direct or closely analogous precedent, the court should apply three criteria to
determine whether there is a duty of care:
– The damage must be foreseeable
– There must be a sufficiently proximate relationship between the parties; and
– It must be ‘fair, just and reasonable’ for the court to impose a duty of care in the light of policy
considerations with which the court is concerned
Fidelity plc was owned by the Dickman brothers, who overplayed the value of Fidelity plc by classifying white
goods as more valuable than they were. Touche Ross were the auditors of Fidelity plc, and hadn’t noticed any
account error, signing a statement confirming this; required by the Companies Act (allows shareholders to have
confidence in the company’s value). Caparo Industries purchase Fidelity plc, at the overvalued price. Caparo
Industries sued and won against the Dickman brothers, and also sued Touche Ross, arguing Ross owed a duty of
care, which was breached when they gave their false statement. The court ruled there is no duty of care owed to
3rd parties, only to shareholders.
“in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are
that there should exist between the party owing the duty and the party to whom it is owed a relationship
characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the
court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party
for the benefit of the other.” (Lord Bridge, 617-618).
In Customs & Excise Commissioners v Barclays Bank [2006], Lord Walker said, since Caparo, the courts have shown
an ‘increasingly clear recognition that the threefold test… does not provide an easy answer to all our problems, but
only a set of fairly blunt tools’ [71] (Caparo test was rejected by the High Court of Australia in Perre v Apand Pty
Ltd (1999)). Robinson clarified the use of the Caparo test, in that it would only be used in novel duty cases.
The threefold Caparo test:
1) Foreseeability:
A duty can only be owed if preventing the loss in question is ‘reasonably foreseeable’.
- The foreseeable claimant:
An individual must be closely and directly affected by the defendant’s conduct. Bourhill v Young (1943) shows this,
whereby the Lords held that whilst the defendant would be liable for damage suffered by other road users, the
claimant was too far removed from the scene of the accident to be a reasonably foreseeable victim.
- Is an unborn child a ‘foreseeable claimant’?
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