Negligence: Duty of care
Development of a general test
the law prior to Donoghue v Stevenson consisted of a series of instances where a ‘duty to take care’ was recognised, and these
were not united by any general theory. Many of the situations were contractual or perceived to be similar to contract (for
example, the position of carriers in respect of their passengers).
Donoghue v Stevenson [1932] AC 562
facts: C went to a cafe with a friend. the firmed bought drinks for them. C had ginger beer, which came in an
opaque gland bottle. C poured out and drank some of the ginger beer but subsequently noticed that a dead
snail had come out of the bottle. she suffered gastric illness, arguably as a result of consuming said ginger
beer. C brought a claim against the manufacturers of the ginger beer;
issue: whether the manufacturers owed a duty of care to the end consumers of their products (note that, at the
time, there was no general test for determining whether one owed a duty of care to another; rather a set list of
circumstances were routinely followed in claims of negligence);
the difficulty involved in this claim, however, was that the manufacturers already owed a contractual
duty to the distributors/ cafe with regards to the safety of the product, re: at the time, it was widely
accepted that where one owes a contractual duty to another, they do not owe a duty of care to a third-
party with regards to the same subject matter;
held: yes — the manufacturers owed a duty of care to the end consumers of their products;
the ‘privity fallacy’ — the existence of a contract between the defendant and a third party did not
prevent the defendant owing a duty to the plaintiff in tort in relation to the performance of that
contract.
the ‘neighbour principle’ — does not form part of the ratio of the case, but regarded as introducing a
moral principle into this area of the law (to answer the question whether A owes B a duty of care
necessarily requires a consideration of whether A ought to take care to look after B’s interests)
per Lord Atkin: “in English law there must be, and is, some general conception of relations
giving rise to a duty of care, of which the particular cases found in the books are but rare
instances. The liability for negligence, whether you style it such or treat it as a species of
‘culpa’, is no doubt based upon a general public sentiment of moral wrongdoing for which the
offender must pay. But acts or omissions which any moral code would censure cannot in a
practical world be treated so as to give a right to every person injured by them to demand
relief. In this way rules of law arise which limit the range of complainants and the extent of
their remedy. 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. 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.”
BUT per Lord MacMillan — the ‘categories of negligence are never closed’ and ‘the
conception of legal responsibility may develop in adaptation to altering social conditions and
standards’.
re: cautious line of reasoning — possible to expand the law of negligence by analogy (gives
little practical guidance on when a duty of care should be owed and leaves the issue to be
decided in each and every specific factual matrix);
*** approach bears similarities to the one currently favoured by the courts;
=> the key difference between Lord Atkin and Lord Macmillan is that the latter did
not advance a general proposition that sought to justify both the situations in which
liability had already been acknowledged and the expansion of the law;
Lord Rodger, “Lord Macmillan’s Speech in Donoghue v Stevenson” (1992) 108
L.Q.R. 236
Lord Macmillan had originally drafted a speech deciding the case by
reference to Scottish law, but it seems likely that Lord Atkin persuaded him
(and perhaps also Lord Thankerton) to widen the decision to cover English
law as well;
Two-stage test
Anns v Merton London Borough Council [1978] AC 728 (discussed in Caparo Industries plc v Dickman) — per Lord
Wilberforce, two-stage test to establish the existence of a duty of care:
, i. sufficient relationship of proximity between D and C => prima facie duty of care;
BUT c.f. Hill v Chief Constable of West Yorkshire [1989] AC 53 — ‘proximity';
*** proximity — not sufficient to give rise to a duty of care that harm is foreseeable,
something more is needed, re: closeness of relationship between D and C;
re: C’s daughter had been just one individual in a wider group of potential victims; hundreds
of young women would fit the profile
ii. if i. answered affirmatively, necessary to consider whether there are any considerations which ought to negative,
or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a
breach of it may give rise;
re: policy consideration that would discourage the finding of a duty;
*** problems with the two-stage test as laid out by Lord Wilberforce:
i. taking ‘proximity’ to be synonymous with ‘foreseeability’ — per Kidner, to neglect proximity in this way was a
significant error; might lead courts to overlook some very significant policy (and other) reasons which had been
decisive in the pre-Anns case law.
ii. suggestion that this approach applied to all cases where the court had to decide whether to recognise a duty of
care in negligence led to ‘ocean of liability’ (Ibbetson) — courts were tempted to reconsider established areas
under the influence of Anns, questioning existing restrictions; reasoning which had been applied to restrict
liability in previously decided cases was prone to be swept aside or addressed only at the second stage.
iii. by the time this second stage was reached, a prima facie duty was already said to have arisen — no duty’ or ‘no
liability’ cases would begin to require exceptional justification.
*** Lord Wilberforce’s approach—taken literally—effectively recognised a presumption of liability in every case
where injury to the claimant was reasonably foreseeable, and put on the defendant the onus of identifying reasons of
public policy which militated against the imposition of such a duty.
=>for a brief period in the late 1970s and early 1980s, the literal interpretation of this approach led to the
overturning of long-established authorities denying the existence of a duty on the basis that the mere
foreseeability of injury gave rise to at least a prima facie duty of care
^ this gave rise to concerns resulting in a so-called ‘retreat from Anns’ in which the courts reverted to a more
cautious and pragmatic approach to the recognition of duties of care and re-established many of the old rules
denying the existence of any duty at all in particular circumstances.
BUT c.f. Caparo Industries plc v Dickman [1990] 2 AC 605 — three-stage test for duty advanced, moved away from the
position of Donoghue and Anns whereby foreseeability of damage was enough to raise a prima facie duty of care, which
would be negated only if there were public policy considerations that militated against such a duty.
per Lord Bridge, test for establishing the existence of a duty of care:
i. foreseeability of damage;
ii. sufficient relationship of proximity between D and C;
^ this requirement marks a departure from Anns, where the term ‘proximity’ was not intended to add
anything to the notion of reasonable foreseeability;
re: to say that there was proximity between C and D was to say that it was reasonably foreseeable to
D’s carelessness could cause C harm => proximity was not an extra hurdle / requirement;
Caparo changed this by employing proximity as a distinct, additional element of the test for
establishing the existence of a duty of care + made it clear that the HoL the term was used to
mean something more than the simple foreseeability of harm;
re: proximity does not mean physical closeness but is instead a legal term of art;
+ Lord Oliver notes that it is a convenient expression so long as it is acknowledged
that it is a label that describes the circumstances from which the courts can establish
the existence of a duty;
re: before a duty can arise, a certain type of relationship must exist between the
parties
BUT gives little information on what sort of relationships will amount to
those that are sufficiently proximate;
, iii. must be fair, just, and reasonable for a duty of care to be recognised;
^ can be regarded as the general repository for a miscellaneous set of policy arguments, undefined in
nature and unlimited in number, which to date have been invoked haphazardly and in an ad hoc
fashion by the courts in determining whether a duty of care should arise
per Witting — that this leaves the courts with an inevitable ‘residual discretion as to whether or not a
duty of care should be recognised’
BUT Lord Bridge denied that any simple formula could offer assistance as a test of liability;
+ adds the crucial qualification that the law should be developed only incrementally, by analogy with existing duty
situations;
+ per Stanton — whereas Anns invited courts to disregard previously established limits on the number and breadth of
duty situations, the Caparo approach gives a crucial role to consideration of precisely how far the authorities have
already gone. Caparo thus embodies a much less dynamic approach than deciding the duty of care by reference to the
broad ‘neighbourhood’ principle enunciated in Donoghue v Stevenson and constitutes a significant staging-post in the
‘retreat from Anns’;
^ return to orthodoxy, favours Lord Macmillan’s approach in Donoghue;
*** the overall effect of the three-stage test is to change the starting point from which decisions on duty of care are made, re:
Lord Wilberforce’s test in Anns started from the presumption that, where harm was reasonably foreseeable, there was a duty,
whereas the Caparo three-stage test starts from the position that no duty is owed unless there are further reasons for imposing
liability.
Examples of three-stage test
(1) Parents’ duty to children
XA v YA [2010] EWHC 1983 (QB), [2011] PIQR P1, [139]-[143].
facts: claim in negligence brought by a man against his mother, in respect to his treatment as a child by his
father. his complaint was that the mother negligently failed to intervene so as to protect him against his
father’s violence;
held: no duty of care owed by mother to son — not fair, just, and reasonable to impose such a duty because
the duty could only have been performed by the mother leaving the family home, the father being removed
from the family home or the children being taken into care (the court was troubled by the idea that a duty of
care could be recognised that effectively required the breaking up of the family) + the father had also been
violent towards the mother (unfortunate to impose such a duty on the defendant as a victim of domestic
violence herself);
(2) Parents’ claim for costs of unintended child
McFarlane v Tayside Health Board [2000] 2 AC 59
facts: C had a vasectomy at D’s hospital. the surgeon informed C that the operation had been a total success.
C’s wife subsequently became pregnant and gave birth to a healthy child. the couple brought claims in
negligence against the health authority (distress, etc. of pregnancy + costs of brining up the child);
held: allowed wife’s claim (distress of pregnancy and birth) but rejected joint claim about the costs of
bringing up the child;
per Lord Steyn — important to approach such cases from the perspective of distributive justice, re:
whether allowing recovery would reflect a fair distribution of burdens and benefits among members
of society;
ordinary men and women would deny recovery in the instant case because they would have in mind
that many would like to have children but are unable to do so
=> inappropriate to give compensation to the couple in this case because they had more children than
they expected;
(3) Police duty to victim of crime
Hill v Chief Constable of West Yorkshire [1989] AC 53 — no duty owed by police to the mother of a murder victim
for negligence in failing to apprehend the serial murderer earlier.
facts: the House of Lords dismissed an action by the parents of the last victim of the ‘Yorkshire Ripper’, Peter
Sutcliffe. The action alleged that there had been negligence in the conduct of the police investigation of earlier
, murders and that this had resulted in failing to apprehend Sutcliffe at an earlier date which would have
prevented her murder.
held: the police cannot generally be held liable for careless conduct in investigating crime.
*** public policy — (i) would reduce freedoms of police investigation (“detrimentally defence frame
of mind”), (ii) incentive to possibly e.g. divert resources from prevention of crime to investigations,
(iii) fear of litigation costs;
c.f. Van Colle v Chief Constable of Hertfordshire [2009] 1 AC 225
facts: C had been in a relationship that broke down. C’s former partner started to send him a stream of
abusive messages. C reported this to the police, stating that he was fearful that his partner would carry
out the threats. the police made no reports and refused to look at the messages on his phone. C’s
former partner attacked and injured him.
held: no duty of care owed by police to C.
per Lord Brown [132-133] — imposing liability in negligence would (i) distort the police’s
priorities by effectively incentivising them to prioritise certain types of activities at the
expense of others, re: ‘detrimentally defensive frame of mind’, (ii) create undue litigation
costs in time and money, and (iii) incentivise police to err on the side of over-reaction;
^ criticised by Burton as giving a “license for the police to continue to fail victims of crime
generally”;
c.f. Michael v Chief Constable of South Wales [2015] UKSC 2, [2015] AC 1732
facts: C had a violent former partner who broke into her house and found her with her current partner.
he threatened to kill her current partner and took him way. C called the police but the call is classified
as needing attention in the next 60 minutes. C is told to remain where she was. the former boyfriend
returns and stabs C to death.
held: no duty of care owed by police to C, re: distinction between omission/ positive act effectively
plays down the policy aspect put forward in Hill.
Lord Toulson — criticised the interpretation of Caparo as laying down a test for the existence
of a duty of care, re: Lord Bridge’s speech in Caparo is treated as a blueprint for deciding
cases, despite ‘the pains which the author took to make clear that it was not intended to be
any such thing’.
Lord Kerr (dissenting) — courts should be able to reassess the fair, just and reasonable
requirements over time as social and political expectations change
Recent developments
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] AC 736
facts: pedestrian knocked to the ground by a scaffold involving three men, two of them police officers, the other
suspected drug dealer. C suffered injury;
issue: whether the officers owed a duty of care to the Appellant;
held: yes — the established principles of duty were applicable;
first instance — held that the officers had been negligent, but that the police were immune from claims against
them in negligence.
CA — found that most claims against the police when engaged in their core functions will fail the third stage
of the “Caparo test” i.e. that it will not be fair, just and reasonable to impose a duty of care + the drug dealer
had caused the harm to the Appellant and the case therefore concerned an omission by the police, rather than a
positive act.
SC — (1) does the existence of a duty of care always depend on an application of the “Caparo test” (2) is
there a general rule that the police are not under any duty of care when discharging their core functions, and is
there any distinction between acts and omissions (3) was this a positive act or an omissions case (4) did the
police owe a duty of care to the Appellant (5) if so, was the Court of Appeal correct to overturn the judge’s
finding that the officers failed in that duty and (6) if there was a breach of a duty of care, were the Appellant’s
injuries caused by it?
appeal allowed, Lord Reed for the majority:
