Negligence: Duty of Care

Negligence: Duty of Care

Negligence is the most important tort in English law. To succeed in a negligence claim, the claimant must establish three elements: (1) the defendant owed a duty of care; (2) the defendant breached that duty; and (3) the breach caused legally recognised damage.

The Development of Duty of Care

The Neighbour Principle — Donoghue v Stevenson [1932]

The modern law of negligence began with Donoghue v Stevenson [1932], in which Lord Atkin formulated the neighbour principle:

> "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."

A "neighbour" is anyone so closely and directly affected by your act that you ought reasonably to have them in contemplation when directing your mind to the acts or omissions in question.

Facts: Mrs Donoghue drank ginger beer from an opaque bottle bought by her friend. The bottle contained a decomposed snail. She suffered gastroenteritis and nervous shock. She could not sue in contract (she had not purchased the beer), so she sued the manufacturer, Stevenson, in negligence.

Held (House of Lords, 3:2): A manufacturer owes a duty of care to the ultimate consumer of their product. This established that a duty of care could exist outside contractual or property relationships.

The Caparo Three-Stage Test — Caparo Industries plc v Dickman [1990]

The current test for establishing a duty of care in novel situations is the Caparo test (Caparo Industries plc v Dickman [1990]). The House of Lords held that three requirements must be satisfied:

1. Foreseeability of harm — was it reasonably foreseeable that the defendant's conduct could cause harm to the claimant?

2. Proximity of relationship — was there a sufficiently close relationship between the claimant and the defendant (in terms of time, space, or relationship)?

3. Fair, just, and reasonable — is it fair, just, and reasonable to impose a duty of care in this situation?

Facts of Caparo: Caparo Industries relied on Fidelity's audited accounts (prepared by the accountants Dickman) to make a takeover bid. The accounts were inaccurate. Caparo sued the accountants.

Held: No duty of care was owed. Auditors prepare accounts for the purpose of enabling shareholders to exercise their rights as shareholders, not to assist potential investors in making takeover decisions. There was insufficient proximity, and it would not be fair, just, and reasonable to impose a duty for an indeterminate class of potential investors.

The Incremental Approach

Lord Bridge in Caparo also endorsed an incremental approach — extending recognised duty situations by analogy, step by step, rather than applying a single broad test. This ensures the law develops cautiously and avoids opening "floodgates" of liability.

Established Duty Situations

In many situations, the existence of a duty is well established and does not require fresh application of the Caparo test:

Relationship	Authority
Manufacturer → consumer	Donoghue v Stevenson [1932]
Road user → other road users	Nettleship v Weston [1971]
Doctor → patient	Bolam v Friern Hospital [1957]
Employer → employee	Wilsons and Clyde Coal v English [1938]
Teacher/school → pupil	Woodland v Essex CC [2014]
Occupier → visitor/trespasser	Occupiers' Liability Acts 1957 & 1984

Problematic Duty Situations

Pure Economic Loss

The courts have been reluctant to impose a duty of care for pure economic loss — financial loss that is not consequential upon physical damage or personal injury.

• Spartan Steel v Martin [1973] — a power cut caused by D's negligence damaged steel in the claimant's furnace (physical damage — recoverable) and caused lost profits on future melts (pure economic loss — not recoverable)
• Murphy v Brentwood DC [1991] — the House of Lords held that the cost of repairing a defective building was pure economic loss (overruling Anns v Merton LBC [1978])
• Exception — Hedley Byrne principle (see below)

Pure Psychiatric Injury (Nervous Shock)

Primary victims — those within the zone of physical danger:

• Page v Smith [1996] — D's car collided with C's. C suffered no physical injury but the accident triggered chronic fatigue syndrome. The House of Lords held that a primary victim need only show that some personal injury (physical or psychiatric) was foreseeable, not specifically psychiatric injury

Secondary victims — those who witness injury to another:

Must satisfy the control mechanisms from Alcock v Chief Constable of South Yorkshire [1992]:

1. Close tie of love and affection to the primary victim — presumed for spouses, parents, and children; others must prove it

2. Proximity in time and space to the accident or its immediate aftermath — McLoughlin v O'Brian [1983] (mother saw family at the hospital two hours later — sufficient proximity)

3. Perception by own unaided senses — watching on live television was insufficient in Alcock (the Hillsborough disaster)

4. Sudden shock — a gradual realisation of what has happened is insufficient

Rescuers:

• White v Chief Constable of South Yorkshire [1999] (also a Hillsborough case) — police officers who attended as part of their duties were not primary victims and could not claim as secondary victims without satisfying the Alcock criteria. Professional rescuers have no special status.

Negligent Misstatement — Hedley Byrne v Heller [1964]

A duty of care can arise for negligent statements causing pure economic loss where there is a special relationship between the parties:

• Hedley Byrne & Partners Ltd v Heller & Partners Ltd [1964] — an advertising agency asked a bank for a credit reference on one of its clients. The reference was negligently positive. The House of Lords held that a duty of care for negligent misstatement exists where:

1. There is a special relationship of trust and confidence

2. The maker of the statement voluntarily assumed responsibility for the accuracy of the statement

3. The claimant reasonably relied on the statement

(In the case itself, the bank had included a disclaimer, so was not liable — but the principle was established.)

• Caparo itself: the Caparo test and the Hedley Byrne principle operate together for negligent misstatement
• Chaudhry v Prabhakar [1989] — a friend who gave negligent advice about buying a car owed a duty of care because the claimant relied on the friend's expertise
• Spring v Guardian Assurance [1995] — an employer owed a duty of care when providing a reference for a former employee

Omissions

English law generally imposes no duty to act to prevent harm to others (the distinction between acts and omissions):

• Smith v Littlewoods [1987] — D was not liable for failing to prevent vandals from entering their empty cinema and starting a fire that damaged neighbouring property
• Exceptions where a positive duty arises:
• Where D has assumed responsibility for the claimant (e.g. Barrett v Ministry of Defence [1995])
• Where D created the danger (Goldman v Hargrave [1967]; Haynes v Harwood [1935])
• Where D has control over a third party who causes harm (Home Office v Dorset Yacht Co [1970] — prison officers owed a duty when borstal boys escaped and damaged a yacht)

Public Bodies

Public authorities owe duties of care cautiously:

• Hill v Chief Constable of West Yorkshire [1989] — the police owed no duty of care to individual victims of the Yorkshire Ripper to catch him sooner. Policy reasons: fear of defensive policing, diversion of resources
• Robinson v Chief Constable of West Yorkshire [2018] — the Supreme Court clarified that the police do owe a duty of care where they have created or contributed to the danger (officers chasing a suspect knocked over a pedestrian — standard negligence principles applied)
• Michael v Chief Constable of South Wales [2015] — police owed no duty of care to a woman who was murdered after calling 999; the call did not create an assumption of responsibility

The Policy Factor

The third limb of the Caparo test (fair, just, and reasonable) involves policy considerations:

• Floodgates — would imposing a duty lead to an overwhelming number of claims?
• Defensive practices — might it cause professionals (doctors, police, teachers) to act defensively rather than in the public interest?
• Insurance availability — can the defendant reasonably insure against this type of claim?
• Alternative remedies — is there a better mechanism (e.g. a statutory compensation scheme)?
• Indeterminate liability — would D be exposed to liability to an unlimited class for an unlimited amount?

Evaluation

• The Caparo test provides a flexible framework but gives judges significant discretion — is this too much uncertainty for claimants?
• The control mechanisms for psychiatric injury (Alcock) have been heavily criticised as arbitrary — why should proximity in time and space determine recovery?
• The reluctance to impose duties on public bodies has been criticised for leaving victims without a remedy
• The distinction between acts and omissions can seem harsh — should the law do more to require people to help others in danger?
• The law on pure economic loss may be too restrictive — especially where D's negligence foreseeably causes financial harm

Exam approach:

• Identify whether the duty situation is established or novel
• If novel, apply the Caparo three-stage test with case authority
• For psychiatric injury, classify the claimant as primary or secondary victim
• Discuss policy considerations where relevant
• Evaluate whether the current law strikes the right balance between protecting claimants and limiting liability