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Tort liability can be imposed in many instances that include negligent behaviour towards a person or
land, negatively affecting a person’s reputation or limiting freedom of movement. This module will aim
to explain and take you through how and why liability can be imposed on a defendant, giving you an in-
depth understanding of the nature of tortious liability.
There are many torts that will be discussed in this module. They include, for example, libel, slander,
nuisance, negligence, trespass, assault and battery. Thus, it is not possible to provide one definition that
encompasses all torts, considering how each tort has its own specific characteristics. It is, therefore, best
to think of the law of tort as the law of behaviour that is legally ‘wrong’ or ’tortious’, giving rise to an
entitlement to a remedy for the claimant.
Principles of Tort
Whilst it may not be possible to precisely define what tort is, various principles can be identified that
help establish when a tortious liability arises. It has to be noted, however, that there is no predominance
of any one principle. The principles that can be turned to are:
Compensation
Fault
Retributive justice (punishment)
Deterrence
Economic efficiency
Loss distribution
Protected Interests
Tort law also aims to protect individual interests from a harm that is actual or threatened. However, not
all interests are protected and some benefit from better protection than others. This is as a result of the
importance of an interest reflected by society through the years. The interests protected include:
Personal harm
Harm to property
Harm to reputation
Harm to financial interests
Harm to the due process of law
,Duty of Care
What is a ‘Duty of Care’?
Duty of care constitutes the first of the three primary elements of tort (duty of care, breach and
causation). Whilst there are many situations in which an individual might have acted carelessly, unless
they have a duty of care to the person harmed by their carelessness, then no claim will arise. This is a key
point - whilst a case (or problem question) might present the clearest existence of breach and causation
possible, it will fail if duty of care is not present at the time of the breach.
Although the term ‘duty of care’ can seem a little alien at first, it can roughly be thought of a
responsibility of an individual to not harm others through carelessness. For example, a driver on the road
has a responsibility to other road users to not cause an accident through driving carelessly. In other
words: they have a duty of care to other road users.
Because of its ability to make or break a given case, duty of care is often thought of as a ‘control
mechanism’ within the law - essentially, a way for the courts to make a distinction between cases which
are legally significant, and therefore worth pursuing, and those cases which do not merit legal attention.
The Development of the Duty of Care
The legal basis for finding a duty of care has its roots in Donoghue v Stevenson [1932] AC 562. Although,
as will be noted below, there exists a more modern test to establish a duty of care, Donoghue v
Stevenson provides the theoretical basis for the duty of care, and thus modern negligence, and so it is
necessary to be familiar with the case.
Before Donoghue v Stevenson, the concept of duty of care did not exist in any particularly notable form
within the English law. This meant that unless a plaintiff had a contract with a defendant, they had no
means of bringing a case in negligence. This led to a considerable number of injustices when individuals
were injured by clear instances of negligence. An example of this phenomenon can be seen
in Winterbottom v Wright (1842) 10 M&W 109. In the case, the defendant (Wright) was contracted by
the UK’s Postmaster-General to maintain a horse-drawn mail coach in a safe state. The plaintiff
(Winterbottom) was also contracted by the Postmaster-General to drive the coach between destinations
but was injured when the coach collapsed due to disrepair. Although it was clear that Wright had acted
negligently, the courts held that Winterbottom could not sue Wright, because a contract did not exist
between the two. In essence, the contract concept of privity prevented legal action.
It does not take a huge amount of insight to see the problems that might have arisen as a result of the
above decision. For example, a consumer injured by a bottle mistakenly filled with acid rather than soda
would have no legal recourse if somebody else purchased the soda for them. Similarly, since road users
do not have contracts with each other, none could be said to owe each other a duty of care, no matter
how dangerously they were driving. This is clearly problematic - we want our soda producers to ensure
their products are safe, and we want drivers on the road to be careful, and the threat of being sued is a
useful deterrent to unsafe behaviour.
It is, therefore, fortunate that the courts established the generally applicable concept of duty of care
in Donoghuev Stevenson. It should be noted that the concept of a duty of care was not created
,specifically in Donoghue; instead, it was restricted to a few, highly specific situations. Thus, statements
that the courts ‘invented’ or ‘created’ the duty of care concept in Donoghue are false, and should be
avoided. Instead the courts can be thought of as greatly widening the remit of the concept.
Case in Focus: Donoghue v Stevenson [1932] AC 562
The case itself involved a relatively simple (and now famous) set of facts. The plaintiff (Mrs Donoghue)
visited a café in August of 1928 with a friend. The friend purchased an opaque bottle of ginger beer for
Mrs Donoghue and decanted most of it into a glass tumbler for her to drink. After Mrs Donoghue had
consumed the glass of ginger beer, her friend poured the remainder of the bottle into the glass, which to
both Mrs Donoghue and her friend’s surprise, contained a partially decomposed snail. As a
consequence, the plaintiff suffered from ‘shock and illness’, and subsequently brought a case against the
manufacturer of the ginger beer (Stevenson) for £500, asserting that it had failed in its duty to prevent
foreign objects from making their way into its products. Following Winterbottom, the case was rejected
in both of the lower courts, before being appealed to the House of Lords where it was successful, and
Donoghue was awarded damages.
Key to the decision is the reasoning of Lord Atkin (who led the majority of the court). Atkin held that a
general duty of care could be said to exist between two parties under the ‘neighbour principle’,
described in this key quote:
"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 into
question."
- Lord Atkin, Donoghue v Stevenson, at 44.
Thus, Stevenson should have taken reasonable care to avoid snails or similar from getting into its
products, because it is foreseeable that they might harm someone who consumed them. Notably, Atkin
also posits (at 57) that to reject the neighbour principle (and thus the wider application of the duty of
care concept) would be unjust, as it would allow manufacturers to knowingly send faulty products out
into the world to injure consumers.
However, Lord Atkin’s description of the neighbour principle is relatively broad in scope, and is thus
inclusive of a wide range of situations. As a result of this, a number of cases subsequently sought to limit
the application of the neighbour principle, such as limiting it to cases involving physical harm or damage
to property (Old Gate Estates Ltd v Toplis & Harding & Russell [1939] 3 All ER 209).
Following these restrictions, the law once again returned towards the application of a universal principle,
with Anns v Merton London Borough [1978] AC 728 establishing a two-part test similar to the one
employed in Donoghue. The first part of the Anns test essentially recreates the neighbour principle - a
duty can be said to exist where it is foreseeable that someone will be harmed as a result of negligence.
The second part, however, includes the caveat that the defence can argue against the existence of a duty
with reasons of policy. It should be noted that whilst Anns has been rejected by the UK, it is still in use in
a number of other commonwealth jurisdictions.
, The Anns approach was rejected once again in favour of the test laid down in Caparo Industries v
Dickman [1990] 2 AC 605 test, which is the currently applicable test for establishing a duty of care. This is
discussed in the next section.
Examination Consideration:
Essay questions will often focus on the development of the duty of care. The law can be seen to yo-yo
between applying a universal test to establish a duty of care (such as the neighbour principle) and an
incremental approach (in other words, a duty is only imposed in certain specified situations, with the
courts adding new situations over time.) We are currently in an incrementalist era - the courts will first
ask if a duty already exists (such as between road users or doctors and patients), and if not, will apply
the Caparo test. Universalist approaches are criticised because they are very broad, somewhat vague,
and can lead to floodgate effects. Incrementalist approaches are criticised because they often make
arbitrary distinctions between situations where a duty exists and situations where it does not.
The Current Law: The Caparo Test
Caparo constitutes the currently applicable test for establishing a duty of care, and thus it is important
that you have an in-depth knowledge of the how the test is applied. It is worth noting, however, that the
test should only be applied in full in situations which do not involve a pre-defined duty of care. Such
situations include doctor-patient, solicitor-client, manufacturer-consumer and employer-employee
relationships, as well as situations involving one road user and another. It will be sufficient to simply
state that the duty of care in such a situation has long been established (thus, allowing the use of exam
time or essay word counts on more important matters.) Indeed, this is the process undertaken by the
courts - they will first look to see if there is an established legal position on the relationship between the
two parties before applying Caparo and examining whether a new duty of care should be created.
Case in Focus: Caparo Industries v Dickman [1990] 2 AC 605
The facts of Caparo are relatively straight-forward. A group of investors (Caparo Industries) was looking
to invest in a third-party company - Fidelity. Caparo Industries examined the accounts of Fidelity, which
had been prepared by the defendant (Dickman). The accounts appeared to reveal that Fiedlity had made
a significant profit, and Caparo purchased a third of the company’s shares. It was later revealed that the
accounts were wrong, and that Fidelity was in fact operating at a loss. Caparo then sued Dickman for
their losses. The courts held that there was not sufficient proximity between the accountant and Caparo
Industries - Dickman was not even aware of the existence of Caparo, and was not aware that the
accounts were used by Caparo to judge their investment opportunities. The claim therefore failed.
The Caparo test is made up of three stages: foreseeability, proximity and fairness. This first stage
revolves around whether it is foreseeable that the defendant’s carelessness could cause damage to the
claimant. A prime example of foreseeability can be seen in the US-based case of Palsgraf v Long Island
Railroad Co [1928] 248 N.Y. 339. In the case, the defendant dropped a box of fireworks, which caused an
explosion, which in turn caused a set of heavy metal scales to fall onto the claimant, injuring her.
Although it was possible to trace the claimant’s injuries to the defendant’s negligence, the court denied
the claim - in applying a test of foreseeability, the courts found that it was not foreseeable that the
claimant would be injured. In contrast, consider what would have happened had the claimant been
injured by the explosion itself - it would be quite foreseeable that dropping fireworks (of the variety
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