For application of reasonable foresight in establishing a duty of care see:
For application of proximity in establishing a duty of care see:
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:
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.
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.
Negligence - Duty of Care