Chapter Duty of Care
Revision Aid
1. Definition:
Negligence applies where the claimant’s injury/loss is caused by the defendant’s failure to take
reasonable care. This is the first element of negligence.
2. What is Duty of Care?
This concept was established by Lord Atkin in the context of the neighbor principle.
Donoghue v Stevenson: a person must take reasonable care to avoid injuring those who are
likely to be harmed if they do not take care
There are two elements to the neighbor principle:
(a) Reasonable foreseeability of harm: defendant ought to reasonably foresee that failure to
take care may cause injury.
(b) The claimant must show a degree of proximity between the parties.
If the courts conclude that there is no duty of care then no liability will be imposed regardless of
the extent of the harm.
3. Extension of the Principle
Lord Atkin’s general principles were further developed during a period of judicial activism but
these rules were vague and tried to develop the tort within acceptable limits to prevent the
floodgates from opening.
Anns v Merton: this case developed a two part test to establish duty of care – is there sufficient
proximity between the claimant and the defendant to impose a duty of care? If yes then does
the judge consider that there are any policy grounds that prevent the imposition of such a duty?
This test was eventually found to be inadequate.
Caparo Industries plc v Dickman: this case overruled Anns and created a three stage test to
establish whether there is a duty of care.
4. The Three Stage Test
(a) Was it reasonably foreseeable that the defendant’s failure to take care could cause damage
to the claimant?
(b) Was there a relationship of proximity between the claimant and the defendant?
(c ) Would it be fair, just and reasonable to recognize a duty of care on the defendant to take
reasonable care not to cause damage to the claimant?
The House of Lords also decided that if a case is such that a precedent exists for that situation
then that precedent should be followed. In a novel situation for which no precedent exists the
test laid down in Caparo must be used.
Robinson v Chief Constable of West Yorkshire: the Supreme Court clearly stated that the test in
Caparo is to be used for novel situations and if there is an exsiting precedent then that has to be
followed.
5. Reasonable Foreseeability
The claimant must be a member of a class of persons who are put at foreseeable risk by the
actions of the defendant.
The defendant must have foreseen damage to the claimant.
The nature of the damage should also have been foreseeable.
This is looked at objectively and is not based on what the defendant foresaw.
Bourhill v Young: claimant heard a road accident when getting off a tram. Court held that her
psychiatric harm was not foreseeable.
Haley v London Electric Board: it was held that the defendant’s duty extended to those who
might reasonably be expected to walk along the pavement and this included blind pedestrians.
Topp v London Bus Company: court held that the woman’s death was not foreseeable even
though the theft of the bus by the defendant was.
6. Proximity
This is established if there is an existing relationship between the parties. This could be a legal
relationship or a relationship based on physical proximity.
Hill v Chief Constable of West Yorkshire: HOL held that there was no proximity between the
police and the victim that died because there was no exceptional risk to her personally.
Swinney v Chief Constable of Northumbria: the court held that there was proximity between
the victim and the police but it was decided that the police had not been negligent in protecting
the victim.
7. Fair, Just and Reasonable
This element allows the law to develop in a fair manner with each case being considered on an
individual basis.
XA v YA: the court did not think it was just, fair or reasonable to impose a duty on a mother who
had failed to prevent her son from being assaulted by her husband.
Hemmens v Wilson Browne: it was held that a solicitor could owe a duty of care but it would
not be just, fair or reasonable to impose a duty as it was possible to remedy the situation
without resorting to imposing a duty of care.
8. Policy Considerations
Public policy reasons have been used to protect certain categories of persons and give them
immunity from being sued.
The reason for this immunity is to enable those groups to go about their work without the
threat of being sued.
Main policy reasons behind immunity are:
(a) The defendant might assume a defensive approach to their work.
(b) Liability in tort may undermine protection already provided by common law.
(c) Liability might divert financial resources away from the public towards successful
claimants.
(d) Floodgates argument.
(e) One defendant might be made responsible for a large amount of compensation
(f) There might be an increase in insurance premiums to cover the costs of litigation.
The main groups that enjoy immunity are:
(a) Advocates
Traditionally both solicitors and barristers had immunity both inside and outside the courtroom.
Rondel v Worsley: it was held that a barrister did not owe a duty of care with regard to the
conduct of a case in court.
Saif Ali v Sydney Mitchell: immunity done away with in the context of written advice and
opinions and it was held that a barrister could be sued for written advice and opinions.
Hall v Simons: this immunity was removed.
Three reasons were given for removal of immunity.
(i) Exposure of incompetent practice would strengthen the legal system.
(ii) People are more aware and expect to be able to claim compensation for negligent
professional services.
(iii) The court can be relied on to differentiate between errors of judgment and true
negligence. A causal link would have to be established between the outcome of the case
and poor advocacy.
(b) Local Authorities
Policy reasons are why a duty is not imposed on local authorities so that individuals can obtain a
benefit that should be provided by the state.
The courts also don’t impose a duty where an Act allows the claimant to being a claim for
breach of statutory duty.
BUT there is a general duty on the local authorities to take care of the welfare of children
although there are limits on this.
Phelps v Hillingdon London Borough Council: claimant was successful as the local council failed
to notice her dyslexia on account of which she quit schooling.
Bradford-Smart v West Sussex County Council: no liability as the court held that the local
council is not expected to also prevent bullying outside of school.
Kearn-Price v Kent County Council: the court dismissed the council’s argument that they should
not be expected to supervise children outside school hours.
Mitchell v Glasgow City Council: the local council was a landlord in this case and the House of
Lords held that a landlord did not owe a duty of care to a tenant in relation to wrongs
committed by a third party.
(c) Police
The court distinguishes between careless actions while preventing or investigating crime and
careless actions during the operational stage of that process.
The police do have immunity but it is not a blanket immunity.
Hill v Chief Constable of West Yorkshire: HOL held that there was no proximity between the
police and the victim that died because there was no exceptional risk to her personally and so
there was no liability on the police.
Michael v Chief Constable of South Wales Police: the above position was confirmed.
Robinson v Chief Constable of West Yorkshire: Supreme Court held that arresting someone is a
positive act and this was enough to put the police under a duty of care to protect the claimant
from a situation of danger that had been created by the police.
Robinson has established 3 points
(i)
(ii)
The police have the same duty of care as other members of the public but if a claim
places an unrealistic demand on the police or if a case focuses on an omission then it
is likely that the claim will fail.
As regards omissions the only recourse that a claimant can have is through the
Human Rights Act.
Osman v UK: the European Court of Human Rights held that even though the police had
immunity but it held that the Osman family was entitled to a full hearing where the facts would
be established and the proportionality of police immunity would be weighed against other
factors.
(iii)
Robinson is not changing the law as regards positive actions by the police that cause
harm.
If the police assume a responsibility to keep specific individuals safe then there may be liability.
Rigby v Chief Constable of Northamptonshire: claimant won his case after a fire broke out due
to a gas canister having being negligently fired into a shop.
Mullaney v Chief Constable of West Midlands: the police was liable when a trainee officer
suffered serious injuries when arresting a suspect.
(d) Fire Brigade
Main issue that is of proximity and public policy issues.
Capital Counties plc v Hampshire County Council: a duty of care was owed since the fire
brigade’s action in turning off the sprinklers increased the damage.
(e) Ambulances
Kent v Griffiths: it was held that acceptance of a 999 call created a duty of care between the
claimant and the defendant and in this case the claimant won his action.