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2.1.2 Duty of Care Lecture

Duty of Care

What is a ‘Duty of Care’?

Although the term ‘duty of care’ can seem a little alien at first, it can roughly be thought of as the responsibility of an individual to not harm others through carelessness.

The Development of the Duty of Care

The legal basis for finding a duty of care has its roots in Donoghue v Stevenson [1932] AC 562. Although, as will be noted below, there exists a more modern test to establish a duty of care, Donoghue v Stevenson provides the theoretical basis for the duty of care, and thus modern negligence, and so it is necessary to be familiar with the case.

Key to the decision in Donoghuev Stevenson is the reasoning of Lord Atkin (who led the majority of the court). Atkin held that a general duty of care could be said to exist between two parties under the ‘neighbour principle’, described in this key quote:

“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 into question.”

  • Lord Atkin, Donoghue v Stevenson, at 44.

However, Lord Atkin’s description of the neighbour principle is relatively broad in scope, and is thus inclusive of a wide range of situations. As a result of this, a number of cases subsequently sought to limit the application of the neighbour principle, such as limiting it to cases involving physical harm or damage to property (Old Gate Estates Ltd v Toplis & Harding & Russell[1939] 3 All ER 209).

Following these restrictions, the law once again returned towards the application of a universal principle, with Anns v Merton London Borough[1978] AC 728 establishing a two-part test similar to the one employed in Donoghue.

The Current Law: The Caparo Test

The Caparo test is made up of three stages: foreseeability, proximity and fairness. This first stage revolves around whether it is foreseeable that the defendant’s carelessness could cause damage to the claimant. A prime example of foreseeability can be seen in the US-based case of Palsgraf v Long Island Railroad Co [1928] 248 N.Y. 339. In the case, although it was possible to trace the claimant’s injuries to the defendant’s negligence, in applying a test of foreseeability, the courts found that it was not foreseeable that the claimant would be injured.

The second stage is based on whether there is a relationship of proximity between the defendant and the claimant. This does not dictate that there must be physical proximity, rather that there must be a connection between the two. An example of proximity (or, rather, a lack of proximity) can be seen in Alcock v Chief Constable of South Yorkshire Police[1991] UKHL 5 – members of the general public coming across the aftermath of the Hillsborough disaster and suffering nervous shock as a result were held to not be owed a duty of care, because the link between the defendants and claimants was held to be too distant.

The third and final stage of Caparo involves establishing whether it would be fair, just and reasonable for the courts to find that the defendant owed a duty of care to the claimant. Owing to the vague nature of this criteria, this stage can be thought of as somewhat of a ‘safety valve’, allowing judicial discretion in cases where public policy might dictate that it would be unreasonable for a duty of care to be held to exist- Marc Rich & Co v Bishop Rock Marine Co Ltd[1995] UKHL.

So, if all three of these stages are passed, the case can be said to have satisfied the Caparo test, and thus a duty of care can be said to exist.

Exceptions and Special Situations

Liability for Omissions

Whilst a driver has a duty to not cause an accident through carelessness, they do not have a duty to help those involved in an accident they happen to come across. The principle of non-liability for omissions can be seen at work in Stovin v Wise[1996] UKHL 15. Non-liability also extends to warning – there is no general duty to warn someone of a harm.

There are some exceptions to the rule. The law provides three general groups of scenarios where an individual has a duty to act – where the defendant has control of a situation, where the defendant has assumed responsibility, and where the defendant has created or adopted a risk.

Control situations arise where a defendant has a high degree of control over an individual (and thus is held as owing a duty to exercise that control responsibly. For example, in Reeves v Commisioner of Police for the Metropolis[2000] 1 AC 360 the police were held responsible after an inmate on suicide-watch was able to kill himself.

Assumption of Responsibilitysituations involve, as might be expected, scenarios where one individual implicitly takes on a duty of care by merit of a contract or employment. For example, in Costello v Chief Constable of Northumbria Police[1998] EWCA Civ 1898 it was held that by merit of their joint employment, one had a duty of care to the other to act to prevent foreseeable harm from occurring.

Creation or Adoption of a Risk situations arise where a defendant creates a dangerous situation (including accidentally.)- Capital & Counties plc v Hampshire County Council[1997] 3 WLR 331.

Duty of Care and Third-Party Actors

For the vast majority of cases, the actions of third parties will not impart liability on claimants, and will usually be held as a novus actus interveniens, as per Home Office v Dorset Yacht Co Ltd[1970]. Thus, the general rule is that there is no duty of care to prevent a third party’s actions. However, there are exceptions to this rule, laid down in Smith v Littlewoods[1987] UKHL 18. These exceptions include where there is a special relationshipbetween claimant and defendant, where there is a special relationship between defendant and third party, where the defendant creates a source of danger and where the defendant fails to take steps to deal with a known danger created by a third party.

Duty of Care and Public Service Immunity

Overall, the stance of the courts is that public services do not have a duty of care towards individuals. This can be thought of in terms of the ‘fair, just and reasonable’ part of Caparo – essentially the courts are remiss to find that public services (e.g. police) have a duty to do a particular thing because this would have a negative effect on those services overall. Furthermore, allowing public services to be sued would cause significant resources to be put into defending the case, reducing the ability of that service to serve the general public. Compensation would be paid out of public service coffers, essentially allowing individual claimants to acquire tax payers’ money.

Special Claimants

Finally, there are certain set situations in which a duty of care will be imposed, even if it would traditionally be legally unfeasible- Pre-natal Injuries:Burton v Islington Health Authority[1993] QB 204, and Rescuers: Ogwo v Taylor [1988] AC 431 .


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