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Duty of Care

Lecture L2 Compulsory in Part I Reading: Horsey & Rackley ch 3; Nolan & Oliphant ch 3

Snapshot

Duty of care is the law's first control device in negligence: a question of law that determines whether the defendant's careless conduct is even capable of generating liability to this claimant for this kind of harm. After Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, the inquiry is no longer a routine application of the Caparo three-stage test. It is an exercise in incrementalism: identify whether the facts fall within (or close to) an established category of duty; if so, the duty is taken as read. Caparo's tripartite analysis — foreseeability, proximity, fair-just-and-reasonable — survives only as a fall-back tool for genuinely novel situations, and even then operates by analogy with existing authority rather than as a free-standing test.

1. The historical arc: Donoghue → Anns → Caparo → Robinson

The law has passed through four phases, each reacting against the last. Examiners reward students who can explain why the courts moved from generalising principle to categorisation and back again.

Before 1932, English law operated through discrete fact-specific duties — innkeepers, common carriers, surgeons — with no overarching theory. Donoghue v Stevenson changed that by stating a general principle of liability owed for foreseeable injury.

Donoghue v Stevenson [1932] AC 562 (HL)
Facts
Mrs Donoghue drank ginger beer from an opaque bottle bought for her by a friend in a Paisley café; the remains contained a decomposed snail and she suffered shock and gastroenteritis.
Holding
Despite the absence of contract, the manufacturer owed her a duty of care because consumers were her foreseeable "neighbours" — persons so closely and directly affected by the defendant's act that they ought reasonably to have been in contemplation.
Principle
Lord Atkin's neighbour principle stated a generalised duty grounded in reasonable foreseeability and a relationship of proximity, and it became the conceptual fountainhead of the modern tort of negligence.

The neighbour principle invited generalisation. By the 1970s, encouraged by Lord Reid in Home Office v Dorset Yacht Co Ltd [1970] AC 1004 — "when a new point emerges, one should ask, not whether it is covered by authority, but whether recognised principles apply to it" — the House of Lords was ready for a unifying test. It came in Anns.

Anns v Merton London Borough Council [1978] AC 728 (HL)
Facts
Tenants of a block of flats sued the local authority for negligently approving inadequate foundations; cracks subsequently appeared.
Holding
Lord Wilberforce articulated a two-stage test: (i) a sufficient relationship of proximity such that carelessness was likely to cause damage created a prima facie duty; (ii) the duty stood unless considerations existed that ought to negative, reduce or limit it.
Principle
Foreseeability of harm, by itself, generated a presumption of duty rebuttable only by countervailing policy — an approach that effectively collapsed proximity into foreseeability.

Anns triggered an expansion of liability in areas previously treated cautiously, including pure economic loss (Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520) and public-authority liability. The retreat began almost immediately, with Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210 and Yuen Kun-yeu v A-G of Hong Kong [1988] AC 175 insisting on more than foreseeability, and culminated in two cases:

Caparo Industries plc v Dickman [1990] 2 AC 605 (HL)
Facts
An investor relying on a company's statutory audit took over the company and lost money; the audit had allegedly been negligently prepared.
Holding
No duty of care was owed by auditors to the public at large or to investors. Lord Bridge restated the law as a three-stage inquiry: foreseeability of damage, a relationship of proximity, and that the imposition of a duty be fair, just and reasonable.
Principle
The common law develops novel categories of negligence incrementally by analogy with established authority; there is no single test capable of providing a practical answer in every case.
Murphy v Brentwood District Council [1991] 1 AC 398 (HL)
Facts
A homeowner sold a defective house at a loss and sued the local authority for failing to detect inadequate foundations when approving plans.
Holding
The House of Lords, sitting as a seven-judge panel, overruled Anns. The loss was pure economic loss for which no duty was owed.
Principle
The two-stage test was decisively rejected; courts must reason from established categories and decline to treat foreseeability as sufficient on its own.

For nearly three decades, students recited the three-stage test as the universal formula. The Supreme Court has now told them this is a misreading.

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4
Facts
An elderly pedestrian was knocked over and injured when officers arrested a drug dealer in a busy street; she sued the police in negligence for the manner of the arrest.
Holding
The police owed her a duty: the case fell within the established category of liability for positive acts causing foreseeable physical injury, and no public-policy immunity displaced it.
Principle
Lord Reed held that Caparo had been widely misunderstood; the proper approach is to reason incrementally from established authority. Only where no analogous category exists do the wider considerations of foreseeability, proximity and fairness fall to be weighed.

2. The current test: incrementalism with Caparo as a fall-back

Lord Reed's central correction in Robinson is that Caparo never laid down a tripartite test of universal application. The case had instead repudiated the search for "a single general principle which may be applied in every case". The restored approach runs as follows. In the ordinary run of cases, courts apply existing precedent: where an established category fits, the duty is owed and the court goes no further. In novel cases — those without close analogy — the court considers the closest authorities, weighs the reasons for and against liability, and asks whether the resulting duty is just and reasonable. The exercise is incremental, not free-standing.

The Supreme Court reaffirmed the point in Darnley, where Lord Lloyd-Jones observed that "English law has abandoned the search for a general principle capable of providing a practical test applicable in every situation".

Darnley v Croydon Health Services NHS Trust [2018] UKSC 50
Facts
A claimant with a head injury was misinformed by a hospital receptionist about waiting times, left, and suffered a permanent brain injury when his condition deteriorated at home.
Holding
The hospital owed him a duty extending to the accuracy of information given by non-clinical reception staff; the case fell squarely within the established category of duty owed by hospitals to patients accepted into A&E.
Principle
The duty travels with the function, not with the professional title; once a relationship of proximity is established by the hospital's acceptance of the patient, all those carrying out its functions are within the scope of the duty.

Examiner's tip. In a problem question, candidates lose marks by reciting Caparo's three stages even when the case fits an established category. Robinson tells you to start with the established categories. Only if there is no analogy on the books should you reach for foreseeability/proximity/FJR — and even then, by analogy with the closest authority rather than as an abstract test.

3. Established categories of duty

The starting point is the catalogue of relationships in which a duty has long been settled. Where the facts fit one of these slots, the issue does not arise: the duty is established and you proceed to breach. The principal categories are:

Categories on the cusp — police investigation, social-services child-protection, public-body regulation — remain contested. Outside the established slots, the law is properly cautious: Hill v Chief Constable of West Yorkshire [1989] AC 53 (no general duty of police investigative competence to potential victims) was reframed but not overruled by Robinson. Lord Reed treated Hill as resting on the absence of a positive act causing physical injury, not on a free-standing public-policy immunity.

4. Foreseeability, proximity and "fair, just and reasonable"

Even after Robinson, the three concepts retain analytical work. They are not the test of duty but the vocabulary in which the law reasons about novel categories.

Foreseeability. The court asks not what the defendant actually foresaw but what a reasonable person in the defendant's position would have foreseen. The threshold is undemanding: some general kind of harm to some general class will do. What it filters out is the unforeseeable claimant. Bourhill v Young is the classic illustration: a fishwife who heard but did not see a road accident from behind a tram, and who suffered psychiatric injury and a stillbirth, was outside the motorcyclist's duty — she was not in his reasonable contemplation as someone affected by his careless riding.

Proximity. Lord Atkin's "closeness and directness". This is not simple physical nearness; it is a legal characterisation of how the defendant's conduct reaches the claimant. In omissions cases, proximity carries the heaviest weight: the law starts from the position that there is no duty to act for another's benefit. Mitchell v Glasgow City Council illustrates the point — the local authority's failure to warn a tenant that it was about to confront a violent neighbour did not give rise to a duty, because there was no relationship of proximity sufficient to convert inaction into actionable negligence. Where the duty is informational rather than protective, proximity demands a tight nexus between the defendant's expertise, the claimant's reliance and the loss: Sutradhar v National Environmental Research Council rejected liability where a public-sector geological report had not been prepared for, or directed at, the eventual claimants.

Fair, just and reasonable. The third stage is openly normative. Concerns about the "floodgates" of litigation, the chilling effect on socially valuable activity (McFarlane v Tayside Health Board [2000] 2 AC 59), the displacement of statutory or contractual schemes, and the proper allocation of public resources, all live here. Hill was decided largely on FJR grounds — police would be diverted from operational duties by defensive litigation — although Robinson treats those concerns as built in to the established categories rather than as a separate immunity.

5. The Robinson approach in problem questions

  1. Identify the kind of damage. Personal injury, property damage, pure economic loss, psychiatric injury, or pure psychiatric distress? The duty rules differ for each — name it before going further.
  2. Ask whether the facts fall within an established category. Road users, doctor-patient, employer-employee, manufacturer-consumer, occupier-visitor, public authority and detainee, etc. If so, state the category, cite the leading authority, and treat the duty as established. Stop here.
  3. If the facts are close to but not squarely within a category, reason by analogy. Identify the closest authority and explain why this case is or is not relevantly similar. Darnley is the model — A&E receptionists fell within the established hospital-patient duty by analogy with the role they performed.
  4. Only if no analogy holds, deploy the Caparo three-stage analysis as a fall-back. Test foreseeability, proximity and FJR explicitly, weighing the policy reasons for and against the duty. Make clear you are using Caparo incrementally, not as a free-standing test.
  5. State the duty as owed by D, to a class including C, in respect of this kind of harm. All three coordinates must be present; an unspecified "duty of care" is a sign of weak structure.
  6. Note any limiting factors — assumption of responsibility, omissions, third-party acts, public-policy considerations — before moving to breach.

6. Common pitfalls

Reciting Caparo's three stages as the default test. Since Robinson, that approach is wrong. The default is: identify the established category, name the leading authority, and proceed. Caparo is only a fall-back for novel cases.
Treating "duty of care" as a free-floating proposition. A duty is always owed by D, to a class including C, in respect of a particular kind of damage. State all three coordinates. A duty in respect of physical injury is not a duty in respect of pure economic loss.
Confusing foreseeability with proximity. Foreseeability is undemanding and asks only whether some general harm to some class of persons could be anticipated. Proximity is a richer concept of legal closeness and bears most of the analytical weight in omissions, pure economic loss and psychiatric-injury cases.
Treating Hill as a blanket police immunity. After Robinson, Hill is reframed: the police owe duties for positive acts causing foreseeable physical harm (as in Robinson itself); they do not owe a general duty of investigative competence to the public at large. The distinction is between conduct and omission, not between police and other defendants.

7. Exam checklist