Liability in Negligence
The duty of care
Lesson Objectives
• I will be able to define a duty of care in
terms of the neighbour principle
• I will be able to state the three-part Caparo
test for the existence of a duty of care
• I will be able to explain each part of the
Caparo test by reference to decided cases
Background
• The law of negligence has been developing for
many years
• Definition comes from Blyth v Birmingham
Waterworks Co. (1856) – Baron Alderson
• “Negligence is the omission to do something
which a reasonable man, guided upon those
considerations which ordinarily regulate the
conduct of human affairs , would do, or doing
something which a prudent and reasonable man
would not do.”
• Reasonable man is at the centre of negligence –
what the reasonable man would do is to try to
fulfil his duties to other people
• This would include a duty of care owed to
others. A duty of care is simply a duty to take
care of others or look out for them
• The legal definition is a little more complex – the
law has struggled to define what a duty of care is
or at least how to decide the circumstances in
which a duty of care is owed by one person to
another
• The famous case of Donoghue v Stevenson
(1932) was an attempt to do this
• Donoghue v Stevenson (1932) – this famous case set
out the neighbour principle in the law of negligence. This
principle is the foundation of the modern law
• Lord Atkin:
• “the rules 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. 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 in question.”
• This makes it clear that there can be
liability without a contract and gave the
opportunity for the law to develop the rules
of negligence
• Donoghue v Stevenson set out a
satisfactory principle but as the world
became more complex the test became
too simple so the latest test comes from
Caparo v Dickman (1990) – this case sets
out the modern three-part test to decide
whether a duty of care exists in situations
where there is no precedent for a duty of
care
The three-part test
in Caparo v Dickman
• Facts of the case
• The general test set out requires three elements to be
demonstrated:
• 1. it was reasonably foreseeable that a person in the
claimant’s position would be injured
• 2. there was sufficient proximity between the parties
• 3. it is fair, just and reasonable to impose liability on the
defendant
• All parts of the test must be satisfied if there is to be a
duty of care owed by the defendant to the claimant
The first part - forseeability
• This is an objective test: would a reasonable
person in the defendant’s position have foreseen
that someone in the claimant’s position might be
injured?
• In D v S, it can be seen that failing to stop a snail
getting into a bottle will affect the consumer of
the contents. This is a consequence of
producing food that has foreign bodies in it, and
a reasonable person in the defendant’s position
would foresee that the claimant might be injured
• A good example of the first part of the test
can be seen in Kent v Griffiths (2000)
• This case is an example of foreseeability
in that it is foreseable that an injured
person waiting for an ambulance may
have more severe injuries if there is a
delay
The second part - proximity
• Proximity is related to the concept of foreseeability.
Proximity just means closeness.
• There can be proximity by space, time or relationship – if
I crash my car into yours, I am proximate in time and
space, but not necessarily in relationship
• If I crash into my son’s car, whilst there is a relationship,
it is not relevant to my liability which is based on time
and space
• Relationship only becomes relevant when it makes the
loss foreseeable to a person in the defendant’s position
• Bourhill v Young (1943) – here there was no
physical proximity, as the claimant was in a safe
place away from the accident, and whilst she
could hear it, she could not see it. She later went
to see the aftermath and then suffered her
miscarriage
• McLoughlin v O’Brien (1983) – the claimant was
told of events and rushed to see her injured
family. She then suffered shock. Even though
there was no proximity of space and time, the
relationship overrode this to make the defendant
liable
• In most cases there is little issue of
proximity as the accident victim is part of
the event. However, where a person
learns about an event later or sees it from
a safe distance and where the injury is
psychiatric, (so-called ‘nervous shock’),
then relationship is the key factor
The third part - reasonableness
• The third part of the test, whether it is fair,
just and reasonable to impose a duty of
care, is really a matter of public policy
• Traditionally, the courts were always
concerned that any extension to the types
of claim that could be brought before them
would open the ‘floodgates of litigation’
• Today, the courts are looking at what is best for
society as a whole. Thus, defendants who are in
the public sector are more likely to find that
claims against them fail, as it is not fair and
reasonable to impose liability on them
• The police need to be able to act without undue
worry about legal action in negligence against
them
• Hill v Chief Constable of West Yorkshire (1988) –
the police were found not to owe a duty of care
to potential victims of crime and their families on
policy grounds. This an example of the
reasonableness part of the Caparo three-part
test
• However, the police do owe a duty of care in some
circumstances – e.g. they usually owe a duty of care to
people taken into custody as can be seen from MPC v
Reeves (2001) – the police owe a duty of care to
prisoners taken into custody
• There are limits to this duty of care, or at least as to
whether the duty has been broken – Orange v Chief
Constable of West Yorkshire (2001) – the police’s duty of
care only extends to known risks to a particular prisoner
• Similarly, the police do not owe a duty of care to a
prisoner who is injured whilst making an escape attempt
– Vellino v Chief Constable of Greater Manchester
(2001)
• The fire service has a similar, limited,
protection against claims in negligence,
but the legal profession no longer has that
immunity following the case of Hall v
Simons (2000)
• When applying the Caparo test, say why
each part is or is not present in the
scenario. You must give a reason for your
decision, not just assert.