Duty of Care

The first step to establishing whether there is a claim in negligence is to know whether a relationship between a claimant and a defendant gave rise to a duty of care. The rules in this area are established by case law.

In order for a duty of care to exist there normally will have to be a piece of case law to support the existence of that duty. The existence of these duties can only be relied upon by a claimant when they have suffered some damage, either personal injury or damage to property. They cannot be relied upon where the damage suffered is classed as pure economic loss or pure psychiatric harm. There are special rules governing when a duty of care can be owed in these types of scenarios and they will be considered later.

There are common situations in which a duty of care arises. The most common duty situations are as follows:

  1. Drivers to other road users.
  2. Between a doctor and a patient.
  3. From a teacher to their pupil.
  4. From a manufacturer to a consumer.

These are well established by caselaw.

There may well be new situations that come before the court that could establish new duties of care. The test that the court supplied to determine whether or not a duty of care should be imposed in a new situation is dealt with in the case of Caparo. However, in order to understand Caparo you need to understand the principles of Donoghue -v- Stevenson.

Most law students consider this case at a very early stage in their legal careers. In this very famous case, Lord MacMillan said “the categories of negligence will never close”. The claimant went to a café with a friend. The friend bought a bottle of ginger beer. The bottle was opaque and when she poured the drink a partly decomposed snail came out. The problem for the claimant was that she did not buy the ginger beer so could not make a claim in contract. However, the court held that the duty was owed in negligence and that duty arose between the manufacturer and the claimant.

In this case Lord Atkins said that “You must take reasonable care to avoid act or omissions which you can reasonably foresee would be likely to injure your neighbour”. This has become known as the neighbour principle. Lord Atkins went on to define a ‘neighbour’. He describes how a neighbour can be considered anyone with whom are closely and directly affected in your actions. He defined them as those for whom: “I ought to have reasonably had…in my contemplation as being so affected when I directed my mind to the act or omissions that are called into question”.

The test is one of close relationship or proximity. This does not mean proximity in the physical sense but in the sense of having the other person in mind when you do a certain act.

This test was applied in the case of Caparo. This case redefined the neighbour principle and provided the ‘Caparo Test’ which is now used to determine whether a duty of care is owed where there is no pre-existing authority. In this case the defendant auditor has prepared a set of accounts to value a company. The accounts showed that the company was worth a lot more money that it really was. This was taken to be a negligent act. Relying on the valuation the claimant purchased more shares in the company and then subsequently lost money. The problem for the claimant was that the accounts were not prepared for the claimant but for the purpose of a statutory audit. The House of Lords held that the auditors did not owe a duty of care to the claimant.

The House of Lords in this case set out a 3-part test which is now used to determine whether a duty is owed in any situation. The 3 questions to be considered are:

  1. Does the defendant have reasonable foresight as to the harm of the complainant.
  2. Is there sufficient proximity of relationship between the complainant and the defendant and
  3. That it is fair, just and reasonable to impose such a duty?

The first requirement is reasonable foresight of harm to the complainant. The question is whether it is reasonably foreseeable that the defendant’s actions will affect this particular claimant. A relevant case is this regard is Bourhill -v- Young 1943 AC92.

The second requirement in the Caparo Test is proximity. Proximity relates to the relationship between the claimant and the defendant. In Caparo the claim for damages failed because the relationship between the claimant and the defendant was not sufficiently close.

The final requirement, whether it is fair, just and reasonable to impose a duty is discussed in the case of Hill -v- Chief Constable of West Yorkshire 1989 AC53. In that case the police were exonerated from liability to the parents of a murder victim on the basis that they did not owe a duty of care to any individual as their duty was to the public at large.

There are many factors which the court might take into account when determining whether it is fair, just and reasonable to impose a duty of care on a defendant in any novel situation. These could include policy considerations like floodgates argument, i.e. if the case was allowed to succeed then lots of other litigation cases would follows. The court may consider any public benefit that the establishment of a duty may have, for example, increasing public safety.

There is accordingly a distinction drawn between established duty situations i.e. those that have been considered extensive in common law throughout history and normal duty situations where there is the potential to create a duty on the base of any given fact. If there is an established duty then it is not necessary to consider the Caparo Test. If it is necessary to apply Caparo then it is not clear that there is an existing established duty which is applicable on the facts.

Liability for Omissions to Act

There is a general rule that a duty of care is not owed for omissions i.e., failing to prevent harm to the claimant. However, there is an exception to these rules in the following circumstances.

Firstly, there is a duty not to make a situation worse. You have no positive duty to act on the benefit of others but if someone decides to act then you a have a duty not to worsen the situation that a person is in. This is considered in a case called East Suffolk Rivers Catchment Board and Kent and Another 1940 4 all ER 527.

You might also have a duty to act positively if you have some sort of power or control over another person or object. This special relationship could arise in several different ways. For example, if you are an employer, you may have a duty to your employee to take particular steps to safeguard their safety. This might also be true in the case of parents and their children or teachers and pupils. The list of potential special relationships where such duty would arise is likely to be fact specific and will be considered on a case-by-case basis.