Consolidation of Duty of Care

1. The unifying framework — Robinson incrementalism, Caparo as fallback

The starting point is Lord Bridge's warning in Caparo Industries plc v Dickman [1990] 2 AC 605: "It is never sufficient simply to ask whether A owes B a duty of care. It is always necessary to determine the scope of duty by reference to the kind of damage from which A must take care to hold B harmless." Duty is always tripartite: owed by D, to a class including C, in respect of a particular kind of damage. The post-1990 mistake — invoking Caparo's three stages (foreseeability, proximity, fair-just-and-reasonable) as the universal test — was buried by Lord Reed in Robinson.

The architecture is therefore: (i) ask whether established authority already recognises a duty in the category before you; (ii) if not, ask whether a sufficiently close analogy supports an incremental extension; (iii) only at the residual third step, where no analogy fits, do you deploy Caparo's three stages. Caparo was reduced from gatekeeper to last resort. The five categories below are the established branches of that scheme; the rules in each operate as the doctrinal output of past incrementalism, and you should reach for them before treating any problem as "novel". Topic 2 (Duty of Care) sets out the doctrinal history; this topic synthesises across categories.

2. Category 1 — physical injury and property damage

This is the original Donoghue v Stevenson [1932] AC 562 territory and the heartland of negligence. Where D's positive act causes reasonably foreseeable physical injury or property damage to C, a duty of care arises almost automatically. Lord Atkin's neighbour principle — take reasonable care to avoid acts you can foresee will injure persons so closely affected that you ought to have them in contemplation — is sufficient on its own. Reasonable foreseeability does almost all the work; proximity and policy enter only where the facts are unusual.

Established sub-categories within this rubric — road users to other road users, employers to employees, doctors to patients, manufacturers to consumers, occupiers to lawful visitors — all rest on this default duty and need no fresh Caparo analysis. Robinson itself is a category-1 case: a positive act (the arrest tactics) causing foreseeable physical injury triggered the ordinary rule. Property damage works the same way: Spartan Steel & Alloys v Martin [1973] QB 27 confirms a duty in respect of physical damage to C's property, even where consequential pure economic loss must be filtered out separately. Cross-link to Topic 2 for the historical arc and to Topic 3 for the standard once duty is established.

3. Category 2 — pure omissions / failure to confer benefit

The default rule is the opposite: there is no duty to act for the benefit of another. The classic illustration — failing to rescue a drowning stranger — produces no liability however foreseeable the harm. The justification combines individual responsibility, divided loyalties, and the moral asymmetry between making things worse and failing to make them better. Liability for omissions is therefore exceptional and arises only where one of four recognised situations applies: (i) assumption of responsibility; (ii) creation or increase of the source of danger; (iii) control over a third party who causes the harm; or (iv) control over the claimant in circumstances where C is dependent on D (e.g. custody).

Contrast Kent v Griffiths [2001] QB 36, where an ambulance service that accepted a 999 call did assume responsibility, and Stansbie v Troman [1948] 2 KB 48 (decorator who left the door unlocked controlled the source of danger). The conceptual handle, drawn from Lord Reed in Michael and Poole, is the distinction between making things worse (a positive act, generating duty) and merely failing to make things better (a pure omission, generating no duty unless an exception applies). Topic 4 (Omissions and Third-Party Liability) works through each exception in detail.

4. Category 3 — public bodies

Public bodies are not specially immune; they are subject to the same private-law principles as everyone else. But because their work is largely supervisory — preventing crime, protecting children, regulating safety — they appear in court mostly in omissions postures, and the ordinary rule of category 2 (no duty to benefit) applies. Statutory powers and duties do not, on their own, generate a private-law duty: that proposition was settled by Stovin v Wise [1996] AC 923 and reaffirmed by Lord Reed in N v Poole BC.

HXA v Surrey CC; YXA v Wolverhampton CC [2023] UKSC 52 then confirmed that monitoring, investigating and assessing a child do not in themselves amount to assumption of responsibility — only specific acts (such as taking the child into care under Barrett v Enfield LBC [2001] 2 AC 550) can do so. Policy considerations from Topic 5 (separation of powers, divided loyalties, waste of resources) operate through the omissions framework rather than as a free-standing immunity. See Topic 5 for the full treatment, including the operational/policy distinction.

5. Category 4 — pure economic loss

"Pure" economic loss is loss that is not consequential on physical injury to C or damage to C's property. The default rule, established by Murphy v Brentwood DC [1991] 1 AC 398, is no duty. The reasons are policy-driven: indeterminate liability ("an indeterminate amount, to an indeterminate class, for an indeterminate time" — Cardozo CJ in Ultramares), the priority of contract for allocating economic risk, and the ease with which carelessness can ripple through a market.

Two recognised exceptions admit a duty. The first is the Hedley Byrne principle for negligent misstatements relied upon by C; the second is the extension of that principle in White v Jones to negligent provision of professional services.

The unifying device, reaffirmed in Customs and Excise Commissioners v Barclays Bank [2006] UKHL 28, is voluntary assumption of responsibility. Where that is doubtful, the courts cross-check using Caparo's threefold framework or by incremental analogy. Topic 8 (Pure Economic Loss) sets out the gradations of reliance, the "extended Hedley Byrne" cases (Henderson v Merrett [1995] 2 AC 145), and the residual exceptions for damage to a third party's property (Spartan Steel).

6. Category 5 — psychiatric injury

Negligently inflicted psychiatric harm is recoverable only if (i) it amounts to a recognised psychiatric illness — mere grief or distress is not enough — and (ii) C falls within one of the recognised classes. Primary victims, who were within the zone of physical danger, recover on ordinary Page v Smith [1996] AC 155 principles: foreseeability of physical injury suffices, even if only psychiatric harm in fact eventuated. Secondary victims, who suffer psychiatric injury through witnessing harm to another, must satisfy the four Alcock control mechanisms.

Paul tightened the law decisively. The court rejected the "horrifying event" gloss and emphasised that the negligent act and the harmful event must coincide closely enough for C to be present at "the accident". For the rescuer, bystander, employee and assumption-of-responsibility variants, see Topic 9.

7. The decision tree for problem questions

1. Identify the kind of damage. Is it physical injury / property damage / pure economic loss / psychiatric injury / pure omission to confer benefit? The category fixes the rule.
2. Was the harm caused by a positive act or an omission? Use the "take D out of the equation — would the harm still occur?" test. If yes, treat as omission and look for one of the four exceptions.
3. Is there an established category? Road user, employer, doctor, occupier, manufacturer, professional adviser. If yes, the duty is taken as read; move to breach.
4. If not, does a close analogy support incremental extension? Identify the legally significant features of the analogous authority and apply Robinson.
5. Only if no analogy fits, deploy Caparo: foreseeability, proximity, fair-just-and-reasonable. Use policy considerations (indeterminate liability, separation of powers, divided loyalties, individual responsibility) explicitly.
6. State the duty in tripartite form. "D owes C a duty of care, in respect of [type of damage], because [established category / analogy / Caparo result]." Then move on to breach, causation and remoteness.

8. Pitfalls

9. Exam checklist

• Identified the kind of damage suffered (physical / property / PEL / psychiatric / pure omission to benefit).
• Distinguished positive act from omission using the "take D out of the equation" test.
• Identified the category and applied its established rule rather than running a generic Caparo analysis.
• Cited Robinson [2018] UKSC 4 for the incremental method; reserved Caparo for genuinely novel facts.
• For omissions / public-body cases, walked through the four exceptions (assumption of responsibility, creation of danger, control of third party, control of claimant) and cited Michael, Poole, HXA/YXA.
• For pure economic loss, asked whether there was voluntary assumption of responsibility (Hedley Byrne; White v Jones; Customs & Excise v Barclays).
• For psychiatric injury, classified C as primary or secondary and applied Page v Smith or the four Alcock mechanisms; flagged Paul [2024] UKSC 1 in any clinical-negligence context.
• Stated the duty in tripartite form (D, to C-class, in respect of this damage) and cross-referenced policy considerations expressly where the case is novel.