QUEEN MARY

SCHOOL OF LAW

Tort Law

DUTY OF CARE (INTRODUCTION)

Prescribed reading:
Mulheron, Principles of Tort Law (2nd edn, CUP, 2020), ch 2 (just the designated parts noted in this schema)

The negligence framework

NUTSHELL ANALYSIS: The tort of negligence

1 D owed C a duty of care to avoid causing C the type of injury of which he complains

2 D breached the duty of care, by falling below the standard of reasonable care which the law demands

3a D’s breach caused the damage complained of by C

3b the damage complained of by C was not too remote (unforeseeable) at law to be recoverable

‘ a ‘control mechanism’ in modern negligence law

‘ D v East Berkshire Community Health NHS Trust [2005] 2 AC 373 (HL): ‘the world is full of harm
for which the law furnishes no remedy’

A brief historical overview of the duty of care

early 19th
century – strict recognised categories of negligence — as later described in Lord Buckmaster’s
dissenting judgment in Donoghue v Stevenson (1932)

1842 – Winterbottom v Wright (1842) 10 M&W 109 —

‘if we go one step beyond that, there is no reason why we should not go fifty’

1883 – Heaven v Pender (1883) 11 QBD 503 (CA) —

‘whenever one person is by circumstances placed in such a position with regard to another
that everyone of ordinary sense ... would at once recognise that if he did not use ordinary care
and skill in his own conduct with regard to those circumstances, he would cause danger of
injury to person or property of the other, a duty arises to use ordinary care and skill to avoid
such danger’

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1893 – Le Lievre v Gould [1893] 1 QB 491 (CA) —

‘What duty is there, when there is no relation between the parties by contract?’

1906 – Cavalier v Pope [1906] AC 428 (HL) —

‘moral responsibility ... is not identical with legal liability.’

1929 – Mullen v AG Barr [1929] Sess Cas 461 —

‘In a case like the present where the goods of the defenders are widely distributed throughout
Scotland, it would seem little short of outrageous to make them responsible to members of
the public for the condition of the contents of every bottle which issues from their works. It
is obvious that if such responsibility attached to the Defenders, they might be called on to
meet claims of damages which they could not possibly investigate or insure.’

1932 – Donoghue v Stevenson [1932] AC 562 (HL) — three breakthroughs (1) DOC not
constrained by privity of contract; (2) a new category of DOC created; and (3) the
‘neighbour principle’ replaced the strictly-construed categorisation approach —

‘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 called into question’ +‘not confined to mere physical proximity ... but extends to
close and direct relations [with another]’

1964 – Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (HL) (statement about
creditworthiness, giving rise to pure economic loss) — endorsement of the assumption of
responsibility/reliance test, per Lord Morris – *** an important test for the establishment
of a modern duty of care, within and outside the context of pure economic loss ***:

‘if in a sphere in which a person is so placed that others could reasonably rely upon his
judgment or his skill or upon his ability to make careful inquiry, a person takes it upon
himself to give information or advice to, or allows his information or advice to be passed on
to, another person who, as he knows or should know, will place reliance upon it, then a duty
of care will arise.’

1970 – Home Office v Dorset Yacht Co [1970] AC 1004 (HL) —

‘when a new point emerges, one should ask not whether it is covered by authority but
whether recognised principles apply to it ... I think that the time has come when we should
say that a duty ought to apply unless there is some justification or valid explanation for its
exclusion’

1978 – Anns v Merton LBC [1978] AC 728 (HL) — Lord Wilberforce’s 2-stage test: (1)
foreseeability of damage; (2) unless any policy reasons precluded a duty

1983 – Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520 (HL) — epitome of courts adopting a
wide test of duty

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1990 – Caparo Industries plc v Dickman [1990] 2 AC 605 (HL) – Lord Bridge’s 3-stage test —
*** the overarching test in modern tort law for the proof of a duty of care ***

1990 – Murphy v Brentwood DC [1990] 2 All ER 908 (HL) — overruled Anns

2006 – the Caparo analysis holds equally true today: Customs and Excise Commrs v Barclays Bank
plc [2007] 1 AC 181 (HL) —

‘there is no single common denominator ... by which liability may be determined. In my view
the threefold test of foreseeability, proximity and fairness, justice and reasonableness
provides a convenient general framework although it operates at a high level of abstraction’

2009 – in Mitchell v Glasgow CC [2009] UKHL 11, the House of Lords reaffirmed the 3-stage
Caparo test for ‘novel cases’ + provided the reminder: the existence and scope of a duty of
care is a Q of law

2013 – in Woodland v Essex CC [2013] UKSC 66 (23 Oct 2013), the Supreme Court reaffirmed that
both the assumption of responsibility test, and the Caparo test, were deemed to be
potentially relevant to the determination of alleged negligence giving rise to personal injury,
even though both tests arose strictly in the context of pure economic loss – per Lord
Sumption:

‘The concept of an assumption of responsibility is usually relevant in the law of negligence

as a tool for determining whether a duty of care is owed to protect against a purely economic
loss. ... But the concept of assumption of responsibility is relevant to determine its scope,
whether the potential loss is economic or physical. ...’

2018 – in Robinson v CC of West Yorkshire Police [2018] UKSC 4 (8 Feb 2018), the Supreme
Court reaffirmed the relevance of the various duty of care tests noted below, but cautioned
against any unbridled extensions of liability in negligence:

‘In cases where the question whether a duty of care arises has not previously been decided,
the courts will consider the closest analogies in the existing law, with a view to maintaining
the coherence of the law and the avoidance of inappropriate distinctions. They will also
weigh up the reasons for and against imposing liability, in order to decide whether the
existence of a duty of care would be just and reasonable.’

The modern duty of care tests in English law

There are three (noted overpage):

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 The test The definition The source
the Caparo whether three ‘Caparo ingredients’ are met: Caparo Industries
test plc v Dickman (per
‘ reasonable foreseeability: harm to C was actually foreseen, or Lord Bridge)
reasonably foreseeable, by D;
‘ a requisite degree of proximity (or ‘neighbourhood’) existed
between C and D; and
‘ policy: it is fair, just and reasonable to impose a duty of care
(or that no legal or public policy reason precludes the
imposition of a duty of care)

the voluntary applies where D, possessed of special skill, undertook to apply that skill Hedley Byrne & Co
assumption of for the assistance of C, who relied upon that skill. It requires: Ltd v Heller &
responsibility/ Partners Ltd (per
reliance test ‘ an assumption of responsibility by D towards C to conduct Lord Morris)
himself with reasonable care and/or skill; and
‘ a consequential and reciprocal reliance by C upon D in so
conducting himself

the any new or novel duty of care scenarios should develop incrementally, Caparo (per Lord
incremental by close analogy with established categories, ‘rather than by a massive Bridge)
test extension of a prima facie duty of care restrained only by indefinable
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’. Hence, courts
should ‘hug the coastline’ of established scenarios of duties of care

‘ only ‘labels’ — they operate at ‘a high level of abstraction’, per Customs & Excise Commrs v
Barclays Bank plc [2007] 1 AC 181, [83]; and, most recently: Poole BC v GN [2019] UKSC 25

‘ what is needed is to ‘flesh out’ these high-level factors with lower-level factors, having regard to the
precise facts and circumstances as between C and D

‘ Caparo is the primary test, although the other two are sometimes used instead of, or in conjunction

In practice, a duty of care may be assumed, because it falls within a ‘recognised category’

‘ the requirement to prove a duty of care (usually per the 3-step Caparo test) applies to all scenarios
in which a duty of care is found — but in practice, a duty will be established either by:

• relying upon an existing categorisation, i.e. matching the scenario to a ‘distinct and
recognisable situation’ in which a duty has been recognised (per Lord Bridge, Caparo); or

• analysing the scenario in accordance with the 3-step test + incremental test

‘ some types of ‘distinct and recognisable’ relationships, prima facie, satisfy —

‘persons so closely and directly affected by the defendant’s act that the defendant ought reasonably
to have the claimant in contemplation as being so affected’;

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‘ those relationships include:

• employer–employee;
• doctor–patient;
• teacher–pupil (especially young pupils);
• road users–other road users/pedestrians/passengers;
• transport operators–passengers;
• custodian–prisoner;
• occupiers–lawful visitors (later in Semester 1)

‘ but note that carve-outs can exist, even within these recognised categories:

• employers owe a duty of care to employees, but not to avoid or minimise all
psychiatric illnesses which their employees may suffer: Hatton v Sutherland [2002]
EWCA Civ 76, and on appeal: Barber v Somerset CC [2004] 1 WLR 1089 (HL)

• doctors owe duties to patients to perform medical treatment carefully, but insofar
as sterilisation operations are concerned, their duty is not to avoid or minimise all
adverse consequences flowing from a failed sterilisation: McFarlane v Tayside
Health Board [2000] 2 AC 59 (HL)

Reasonable foreseeability (Caparo #1)

‘ the test of reasonable foreseeability comes up at three stages in the negligence analysis — but it’s
a different test at each stage, e.g.:
Roe v Minister of Health [1954] 2 QB 66 (CA)

‘ an objective test – ‘a real risk, and not a mere possibility’

Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL)

‘ in reality, a poor ‘control mechanism’

Hill v CC of West Yorkshire Police [1989] AC 53 (HL)
Urbanski v Patel (1978), 84 DLR (3d) 650 (Man QB)

‘ a duty of care is not owed to the whole world, but only to an individually-foreseeable victim of the
harm, or to a class of whom the victim is one
Nettleship v Weston [1971] 2 QB 691 (CA)
Bolton v Stone [1951] AC 850 (HL)

‘ particular claimants for whom reasonable foreseeability of their harm raise important issues:

The claimant who is particularly susceptible to the risk of the physical injury which befell him:

‘ how the test applies

‘ this is not the ‘egg shell skull’ rule!

‘ statistical evidence may assist to prove reasonable foreseeability of injury

Haley v London Electricity Board [1965] AC 778 (HL)

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Unborn claimants:

‘ significant judicial differences of opinion about legal standing of unborn claimant

Walker v Great Northern Railway Co of Ireland (1891) 28 LR Ir 69
Burton v Islington HA [1993] QB 204 (CA)
Watt v Rama [1972] VR 353 (CA)

‘ common law replaced by the Congenital Disabilities (Civil Liability) Act 1976 — what it creates
for the child under s 1(1) — the need for an ‘occurrence’

‘ the four triggers for the Act to apply, for the child’s benefit

‘ the restrictions of the Act

McCoy v East Midlands Strategic HA [2011] EWHC 38 (QB)

‘ other potential options for dealing with the unborn claimant

EWLC, Injuries to Unborn Children (Rep 60, 1974, and earlier CP 47, 1973)

Proximity (Caparo #2)

‘ stricter ‘control mechanism’

‘ various types that can be pointed to:

• geographical proximity between C (when damage suffered) and D (when breach occurred)

• temporal proximity between C (when damage suffered) and D (when breach occurred)

• relational proximity — e.g., was C in a vulnerable position vis-a-vis D? What degree of

control did D exercise over the circumstances in which C was injured?

• was there ‘causal proximity’ between C and D (some measure that D could have taken, but
did not)?

Hill v CC of West Yorkshire Police [1989] AC 53 (HL)

Geary v JD Wetherspoon plc [2011] EWHC 1506 (QB)

Policy factors (Caparo #3)

‘ should the defendant be liable? A vital ‘control mechanism’

‘ fluidity, unpredictability — see, e.g., Richardson v Mellish (1824) 2 Bing 229:

‘a very unruly horse, and when once you get astride of it, you never know where it will carry you’

‘ a large bucket of potential policy factors can support, or rule out, a claim in negligence – see pp
67–70, Principles of Tort Law (2nd edn, CUP, 2020)

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‘ the (non)availiability of insurance
Watson v British Boxing Board of Control Ltd [2001] QB 1134 (CA)
Vowles v Evans [2003] EWCA Civ 318

‘ examples of particular defendants:

Very young children:

‘ no duty owed
Carmarthenshire CC v Lewis [1955] AC 549 (HL)

‘ but note the availability of contributory negligence against children

Young v Kent CC [2005] EWHC 1342 (QB)
Ellis v Kelly [2018] EWHC 2031 (QB), [2018] 4 WLR 124

Police involved in criminal investigations:

‘ leading cases: recently – Robinson v CC of West Yorkshire Police [2018] UKSC 4 — and, prior to
that, Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL), and the various public policy
reasons articulated therein:

i. floodgates
ii. defensive practices
iii. diversion of resources
iv. the public good
v. the ‘no-need’ factor
vi. the ‘what would it achieve’ factor
vii. potential conflicts
viii. for the ballot box

‘ there is now an uneasy interplay between the cases, primarily regarding the role which policy should
play in judicial reasoning in duty-of-care conundrums (please see separate case note uploaded to
QMPlus on this point)

‘ and: note the Supreme Court’s statement in Poole BC v GN [2019] UKSC 25, that:

The question whether the imposition of a duty of care would be fair, just and reasonable forms part
of the assessment of whether such an incremental step ought to be taken ... in the ordinary run of cases,
court should apply established principles of law, rather than basing their decisions on their assessment
of the requirements of public policy [via the Caparo test]

‘ a tortuous subsequent treatment of policy factors prior in between Hill and Robinson –
Osman v Ferguson [1993] 4 All ER 344 (CA), and Osman v UK [1999] 1 FLR 193 (EctHR)
Z v UK [2001] 2 FLR 612 (ECtHR)
Brooks v Commissioner of the Police for the Metropolis [2005] 1 WLR 1495 (HL)
CC of the Hertfordshire Police v Van Colle [2008] UKHL 50
Rush v CC of the Police Service of Northern Ireland [2010] NI Master 6

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 and for a useful review of the authorities since, see:
McAteer v Police Service of Northern Ireland [2018] NIMaster 10

‘ what if C is a pre-identified victim?

Michael v CC of South Wales Police [2015] UKSC 2, [2015] 2 WLR 343

‘ note that the police can be liable in negligence, in particular circumstances:

Gilchrist v Greater Manchester Police (Rev 1) [2019] EWHC 1233 (QB) (15 May 2019)
Robinson v CC of West Yorkshire Police [2018] UKSC 4 (8 Feb 2018)
Rigby v CC of Northamptonshire [1985] 1 WLR 1242 (CA)
Swinney v CC of Northumbria [1997] QB 464 (CA)
Donachie v CC of the Greater Manchester Police [2004] EWCA Civ 405
Sherratt v CC of Greater Manchester Police [2018] EWHC 1746 (QB)

The ‘Bad Samaritan’:

‘ judicial hypothetical examples

Gibson v Chief Constable, Strathclyde Police [1999] SCLR 661 (CSOH) 676
Yuen Kun-Yeu v AG of Hong Kong [1988] AC 175 (PC)
Horsley v MacLaren (1970), DLR (3d) 277 (CA) 289 (Jessup J)

‘ reasons for the English view on bystanders

Stovin v Wise [1996] AC 923 (HL)
Smith v Littlewoods Organisation Ltd [1987] 1 AC 241 (HL)
Mitchell v Glasgow CC [2009] UKHL 11
Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 (CA)

i. compromise of individual liberty

ii. indeterminate liability
iii. the ‘why pick on me?’ argument
iv. ‘altruistic quality’
v. imposing expenditure
vi. causation difficulties

‘ also ranks as a ‘pure omission’ — dealt with shortly

‘ compare with the position of the ‘Good Samaritan’

Cattley v St John Ambulance Brigade (QB, 25 Nov 1988)

Assumption of responsibility test

‘ origins: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (HL)

‘ but has been transposed to the context of personal injury claims, not always successfully
Michael v CC of South Wales Police [2015] UKSC 2, [2015] 2 WLR 343

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The assumption of responsibility:

‘ what it means – not assumed, but imposed: Phelps v Hillingdon LBC [2001] 2 AC 619 (HL)

‘ one example: requesting emergency services, and undertaking to provide those

Kent v Griffiths [2001] QB 36 (CA)
Michael v CC of South Wales Police, above

The reciprocal reliance:

‘ what it means: detrimental reliance

Kent v Griffiths, above
Watson v British Boxing Board [2001] QB 1134 (CA)

‘ what if no detrimental reliance:

Biddick v Morcom [2014] EWCA Civ 182

The incremental test

‘ the role, and source, of the test

‘ it can favour advancement, or can be unhelpful about moving the law, depending upon the court’s
attitude to the case before it

Watson v British Boxing Board, above

Michael v South Wales Police, above
Al-Najar v The Cumberland Hotel (London) Ltd [2019] EWHC 1593 (QB)

***

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