Duty of care

Negligence - duty of care

Duty of care refers to the circumstances and relationships which the law recognises as giving rise to a legal duty to take care. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care. Therefore it is necessary for the claimant to establish that the defendant owed them a duty of care. The existence of a duty of care depends on the type of loss and different legal tests apply to different losses. This lecture considers the position in relation to personal injury and property damage. See the other lectures for psychiatric injury, pure economic loss and defective items.

Personal injury and property damage

The existence of a duty of care for personal injury and property damage was originally decided by Lord Aitken's neighbour test from Donoghue v Stevenson.

The neighbour test:

Donoghue v Stevenson [1932] AC 562 Case summary

Lord Aitken:

"The rule that you are to love your neighbour becomes m law you must not injure your neighbour; and the lawyer's question " Who is my ' neighbour ?" receives a restricted reply. 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 in question."

The neighbour test for establishing a duty of care can be broken down in to two requirements:

1. Reasonable foresight of harm

2. A relationship of proximity

For application of reasonable foresight in establishing a duty of care see:

Topp v London Country Bus [1993] 1 WLR 976 Case summary

Home Office v Dorset Yacht Co Ltd [1970] AC 1004 Case summary

For application of proximity in establishing a duty of care see:

Bourhill v Young [1943] AC 92 Case summary

Prior to Donoghue v Stevenson, a claimant would have to establish an existing duty relationship in order to be successful. The neighbour test taken in its widest sense could be very broad allowing liability in a whole range of situations, however, subsequent cases narrowed down its application to only where a consumer was suing a manufacturer. However, in Anns, Lord Wilberforce sought to resurrect an all embracing test for duty of care:

Anns v Merton London Borough Council [1978] AC 728 Case summary

Lord Wilberforce's two stage test:

1. Examine whether the loss was reasonably foreseeable and there existed a relationship of proximity. If so a prima facie duty of care arises.

2. The defendant may put forward policy considerations to negate liability.

The first stage was essentially the elements of the neighbour test, however in order to address the fears of the floodgates, this was subject to the second stage which provided a get out clause for defendants where there existed policy reasons for denying the imposition of a duty of care.

Back to the incremental approach

Despite the efforts to allay fears of the floodgates, the Anns test was still considered too wide. In Caparo, the House of Lords overruled Anns and went back to the incremental approach whereby the claimant may only bring their action where they can establish an existing duty situation. In novel situations the question of whether a duty of care is now subject to the Caparo test.

Caparo Industries Plc v Dickman [1990] 2 AC 605 Lord Bridge's three stage test for imposing a duty of care, known as the Caparo test:

Under the Caparo test the claimant must establish:

1. That harm was reasonably foreseeable

2. That there was a relationship of proximity

3. That it is fair, just and reasonable to impose a duty of care

It can be seen that the first two stages are taken directly from the original neighbour test. Fair, just and reasonable relates to the same policy considerations under the Anns test. In fact the Caparo test contains the same elements as Anns. The main difference being, that under Caparo it is the claimant that must put forward policy reasons for imposing liability whereas under Anns, liability would arise once the claimant had established reasonable foresight and proximity and the defendant had to demonstrate policy factors for negating liability. For further details relating to policy factors see here.