Duty Of Care
Establishing a Duty of Care
• Tort law dictates the basic rights people have against others – how they should treat each other and expect to be treated- and
also determines what remedies are available when those rights have been violated.
o Fairchild v Glenhaven Funeral Services Ltd (2002): ‘The overall objective of tort law is to define cases in which the law
may justly hold one party liable to compensate another’
Elements of the Tort of Negligence: (apply this structure in PQs)
o D owed C a duty of care.
o D breached that duty of care.
o Causation: D suffered injury/loss as a result of that breach.
o Remoteness: The loss suffered must be actionable (sufficiently closely linked to C’s breach).
Definition of Duty of Care
• There must have been a relationship between D and C whereby D was obliged to take sufficient care to avoid causing that
particular injury to C. Two ways of establishing duty:
o Certain ‘special relationships’ – e.g. Doctor/patient
o Common law principles – can establish duties of care outside of special relationships
• Importance of finding DOC:
o It would be unjust to punish D for being careless unless the law required him to exercise care to avoid causing that sort of
harm in the first place.
o Lord Bridge in Caparo: It is insufficient to simply ask whether D owed C a DOC. Scope of the duty must be determined
by asking what kind of harm C was required to take care to avoid inflicting on D.
• Donoghue v Stevenson (1932)
o Laid the original groundwork for the establishment of a duty of care
o Facts: D and a friend went to a café owned by M. the friend ordered for D a bottle of ginger beer. D drunk some of the
contents and then poured out the rest. A decomposing snail came out of the bottle and D became ill. D sued S, the
manufacturer of the ginger beer. Held – by 3:2 majority, D’s claim could succeed.
o Lord Atkin: Speech is significant for its attempt to set down a test for when duties of care will arise when both
FORESIGHT and PROXIMITY requirements are fulfilled
§ Evokes the Bible: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour”
§ He defines “neighbour” as people who are “so directly affected” by my act or omission that I “ought reasonably
to have them in contemplation as being so affected” when I undertake the act/omission
Ø This is the meaning of the “proximity” doctrine i.e. not merely physical proximity
§ He takes moral perspective: It is wrong that a person who consumes the product and is harmed due to R’s negligence
should be left without remedy as would happen if there were no contract/warranty involved i.e. if the consumer is
not the purchaser, as here
§ Finally he says that liability for negligence has public support.
o Lord Macmillan: To whom was the duty owed? All “potential consumers” of his product.
§ “Liability occurs where a reasonable man would have foreseen, and could have avoided the consequences of his
act/omission”
§ Circumstances will always dictate whether
Ø (i) There was a duty of care and
Ø (ii) To whom it was owed
§ NB where the product was intended to reach the consumer in the condition in which the manufacturer sold it, and it
was so, the manufacturer is liable, as in this case
§ However if intermediary parties “have the means and opportunity” to examine it, then the manufacturer’s
liability ceases (not this case)
§ Negligence has to be proved by C and it has to be shown that the thing was in a state capable of causing injury at the
point when it left the manufacturer
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, § The burden is on C, and res ipsa loquitur doesn’t apply.
§ Lord Macmillan said “the categories of negligence are never closed”.
• Significance of Donoghue:
o At its most narrow, Donoghue is authority for the proposition that manufacturers owe a duty of care to those who
ultimately use or consume their goods, at least where neither the claimant nor an intermediate recipient has had the
opportunity to examine the goods for defects or hazards. As such it is a leading case in relation to product liability.
o Donoghue marks the starting point for the modern single tort of negligence. Prior to Donoghue, the courts recognised
duties of care only in a series of isolated instances – e.g. as between an innkeeper and customer or bus/train operator and
passenger. If a claimant could bring himself within one of these pre-existing categories, his claim could succeed. If he
couldn’t, he would fail. This was the problem facing Mrs Donoghue.
o The chief significance of Donoghue v Stevenson was in providing a generalised concept of duty which was applicable in
a wide range of situations. Gradually with the passing of time, the circumstances where duty of care was owed moved
further and further away from specific factual context of the leading case.
o (On a wider doctrine level, the HL held the existence of a contract between the D and a 3rd party did NOT prevent the D
owing a duty to the C in tort in relation to the performance of that contract. Hence, the ‘privity of contract’ fallacy was
exposed.)
• Donoghue v Stevenson in practice:
o Grant v Australian Knitting Mills (1936)
§ Represents the development of Donoghue v Stevenson
§ Dr Grant, the plaintiff, contracted dermatitis as a result of wearing woollen underpants, which had been manufactured
by the defendants (Australian Knitting Mills Ltd). The garment in question contained an excess of sulphite. Upon
purchase, he wore them for one entire week without washing them beforehand.
§ The Privy Council ruled that the essential question was: did the product reach to consumer subject to the same defect
it had when it left the manufacturer?
§ Another question raised to the Privy Council was whether the defect might have been discovered disallowed the
imposition of care on the manufacturer?
§ The Privy Council held that the defendants were liable to the plaintiff thus upholding the ‘neighbour principle’
established in Donoghue v Stevenson
§ Seen to stretch the ruling of Donoghue v Stevenson in that now, liability can arise even if a third party did have
a reasonable opportunity of inspecting the goods.
o Home Office v Dorset Yacht Co [1970] AC 1004:
§ 3 Borstal boys were left unsupervised and damaged a boat. The owner sued the home office for negligence. HL held
that the Borstal officers, for whom the Home Office (HO) was vicariously liable, owed a duty to take such care as
was reasonable in the circumstances to prevent the boys damaging property, provided there was a manifest risk of
that occurring if they did not take such care. Since the risk was inevitable (they knew of the boys’ criminal records
etc), HO was liable. Public policy was also in favour of making HO liable.
§ Lord Pearson: There was a duty of care to the boat owners under the definition of “neighbourhood” by Lord Atkin
in Donoghue v Stevenson. NB Pearson says that this is not a universal test but is a general test, to be applied except
where it would produce injustice: the test is to be applied unless there is a reason for not applying it. He dismisses
each claimed reason for not applying the test. There IS sufficient proximity here because there isn’t only physical
proximity but the harm was also foreseeable. Home Office WAS responsible for the boys due to the special
relationship between them, despite the boys being legal adults. Although Borstal training sometimes requires giving
boys greater freedom, this may only diminish but not eradicate the duty and it is therefore not against public policy
interests to make HO liable for borstal boys’ actions.
§ Lord Reid: he takes a different approach to Pearson. He says that where there is a NAI between R’s carelessness
and the ultimate damage, it is still possible to sue R provided that the damage was highly probable, and NOT mere
foreseeability, as in cases where the damage is direct (the “very probable” requirement emphasises that the NAI is a
consequence of R’s carelessness. “Mere foreseeability” could allow R to be liable even where the damage comes
from a new, separate cause, with little connection to the original carelessness).
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, § Lord Diplock: Lord Atkin’s dictum, as he himself said, was not to be applied universally but merely “generally”
(i.e. not always) since this would unduly restrict the law. If it can be established
Ø (1) That the officers were acting in breach of their instructions (and not acting in pursuance of discretion granted
to them, in which case they, and thus the HO would not be liable) and
Ø (2) That in breaching the instructions the harm was reasonably foreseeable, a duty of care to the boat owners
existed.
Ø (3) He says the key point is that the criminal has been negligently allowed to escape. Therefore the police would
NOT be liable if the criminal escaped and committed crimes out of habit, as opposed to crimes used to facilitate
the escape itself. Nor would police be liable if they released a prisoner who then committed crimes.
§ Foreseeability, vicarious liability, proximity and public policy are all considered in deciding whether the duty
existed.
• Criticism of Donoghue v Stevenson:
o Principle is far too wide
o Lord Diplock in Home Office v Dorset Yacht Co [1970]
§ If retain this principle as “universal” rather than specific to defective products that can’t be inspected by consumer
beforehand
§ Law would hold you responsible for every act and omission you did which had the effect of damaging your neighbour
(e.g. withdrawing service from Tradesman despite goods being perfectly adequate)
§ Thus, it interferes with freedom of choice and action
§ Does not take into account political, social and economic considerations
• The neighbour principle was subsequently refined in the case of Anns v Merton LBC (1978):
o Facts: (NB its relevance to the liability of public bodies was LATER OVERRULED in Murphy v Brentwood; As a test
for the duty of care it was modified in Caparo): C were letters of flats over which D had rights and duties of owner. Cracks
appeared in the walls and C sued D for negligence, after D failed to carry out any inspection of the building. HL held that
C could sue D for negligence: D was under a duty to consider whether an inspection was needed; that this duty required
“reasonable care” to be taken.
o Prior to Donoghue v Stevenson, a claimant would have to establish an existing duty relationship in order to be successful.
The neighbour test taken in its widest sense could be very broad allowing liability in a whole range of situations, however,
subsequent cases narrowed down its application to only where a consumer was suing a manufacturer.
o In Anns, Lord Wilberforce sought to resurrect an all embracing test for duty of care: ‘In order to establish that a duty of
care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations
in which a duty of care has been held to exist. Rather the question has to be approached in two stages:
§ First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a
sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises.’
§ ‘Secondly, if the first question is answered affirmatively, it is 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’ (Public policy factors)
o The first stage was essentially the elements of the neighbour test, however in order to address the fears of the floodgates,
this was subject to the second stage which provided a get out clause for defendants where there existed policy reasons for
denying the imposition of a duty of care.
o So on this view: Reasonable foreseeability of harm – policy factors = duty of care
• Criticism of the Anns test
o Giliker: Confusion problem – test is flawed
§ Confuses foreseeability and proximity, which Lord Atkin formulated as separate concepts
§ Means Judge would have to come up with policy decision to justify the fact he thought the relationship was not close
enough.
o Stapleton: “pockets of liability”
§ Policy question asks whether duty of care should arise in the first place, not whether it is there beforehand but should
then be excluded.
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, o Giliker: rather generous in scope
§ Presumes duty of care exists on foreseeability alone, so somewhat generous
§ Far too broad, could open the floodgates of litigation and create an explosion of liability.
§ Lord Denning in Lamb v Camden LBC [1981]:
Ø Foreseeability often not a useful guide
Ø Amount of damage that can arise from a foreseeable act of negligence does not always stop at the instant act of
negligence
Ø E.g. escaping offender by negligence of HO
§ Means you need an alternative restrictor than foreseeability.
• Retreat from Anns – Caparo Industries plc v Dickman (1990)
o Whereas Lord Atkin's neighbour principle emphasised a need for both a proximate relationship, as well as a foreseeability
of harm, the Anns test did not make such a clear distinction. Richard Kinder has stated that this led the courts to sometimes
ignore relevant policy considerations, and to encourage "lazy thinking and woolly analysis."
o Despite the efforts to allay fears of the floodgates, the Anns test was still considered too wide. In Caparo, the House of
Lords overruled Anns and went back to the incremental approach whereby the claimant may only bring their action where
they can establish an existing duty situation. In novel situations the question of whether a duty of care is now subject to
the Caparo test.
o The Caparo test should not be read as a simply new and improved version of the two-stage test in Anns- as Lord Bridge
as the qualification that the law should only be developed incrementally by analogy with existing situations
o 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 the extent the authorities have already gone.
o Facts: The claimants bought shares in F plc in reliance on an audit into the company’s finances carried out by the defendant.
In fact the accounts published by the defendant were inaccurate and the claimants sued in negligence. Held – no duty of
care was owed, so the claim failed
o Lord Bridge: He criticises the broad approach to finding a duty of care by saying:
§ Firstly that attempts at universal or general approaches are necessarily vague, especially step 2 - bad for legal
certainty.
§ Secondly, the broad approach would lead to a flood of claims, spreading liability too wide. He says there should be
a broad categorization of circumstances where duties of care may be found, e.g. the Anns v Merton LBC case “is
failure to perform properly a statutory duty claimed to have been imposed for the protection of the plaintiff either as
a member of a class or as a member of the public”, while this case is “advice which has been communicated, directly
or indirectly, to the plaintiff and upon which he has relied”.
o He says that to establish a duty of care there should be
§ (1) Reasonably foreseeable harm,
§ (2) Proximity, and
§ (3) Fair, just and reasonable that an extension of the duty of care occur OR an established category where duty of
care has been held to exist.
CAPARO TEST set out by Lord Bridge in Caparo Industries plc v Dickman (1990)
1. Is it reasonably foreseeable that if D fails to take reasonable care C may be harmed?
2. Is there a relationship of “proximity” between C and D?
3. Is it fair, just and reasonable to impose on D a duty of care towards C?
o It can be seen that the first two stages are taken directly from the original neighbour test. Fair, just and reasonable relates
to the same policy considerations under the Anns test. In fact the Caparo test contains the same elements as Anns.
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