Duty of care
Nature of Duty of Care
Cynical View (control device) Real Duty (normative obligation)
1. Weir = fictional retrospective tool 7. McBride: attacks cynical view → argues duty is genuinely
normative — it imposes ex ante obligation
2. Lord Goff in Smith v Littlewood: function of duty is to
identify where liability is not imposed 8. Serious injury demands more precaution so duty standard
responds to stakes
3. Lord Bingham: "blunt instrument" — unlikely to clarify law
without another control mechanism or foundation (i.e. 9. quia timet injunctions to prevent future injuries → duty
France system- stricter BOD) exists to prevent future harm, not just compensate
4. Lord Deane and Lord Goff famously observed DOC is a 10. Boyd v Ineos: injunctions against "persons unknown"
pragmatic 'control device' used to keep negligence within (fracking protesters) due to trespass & nuisance threat
practical principles 11. Weirnib: supports "Atkinian duty"- "normative unit of
5. Critique- Howarth= overarching general duty to be careful careless fault" → corrective justice (neighbour principle)
can exist even if courts excuse Ds in certain cases
6. Counter- Keating= common law "lacks the institutional
competence" to spell out duties
Doctrinal Confusion- conflation with breach + causation
Procedural shortcuts with strike out cases: forcing courts to decide on law before testing factual evidence
o X vs Bedfordshire= HOL justification that social workers perform a "difficult balancing exercise" deciding on intervention-->
O'sullivan suggests this is breach issue (i.e. would RP have acted differently) but SO case doesn't examine what they
actually did
o Lord Hoffmann: supports strike-outs to avoid pointless full-dressed trials
o Lord Bingham (in Barrett): contested policy issues are difficult to judge without evidence (strike outs)
Reallocation of fault based reasoning + policy: Courts effectively assume breach & causation are proven → use policy arguments to
rationalise fault-based reasoning
o Darnley v Croyden= COA error citing pressures of A&E receptionist job which should come under SOC not duty
o Stapleton & Burrows: advocate strict separation of DOC, BOD, and causation for analytical clarity
o O'Sullivan: notes using duty as a sifting device "artificially initiates the policy dimension" making decisions appear more
political than it actually is
o Cohen: dismisses confused duty concepts as "word charms" hiding political and ethical judicial decisions
Can fault do all the work?
D v East Berkshire= Children taken into care due to mistaken belief in abuse- parents suffering psych harm as a result of children
being taken sued- pleading in era of HRA that fault (breach) should be the control mechanism- removing confusion between duty &
breach
Lord Nicholls: approach 'not without attraction' but reservations — uncertainty- some acts/omissions do not attract liability even
where loss is foreseeable- 'Abandonment of the concept of a duty of care in English law, unless replaced by a control mechanism
which recognises this limitation, is unlikely to clarify the law. That control mechanism has yet to be identified.'
Conflict of interest argument also rejected parental claim: doctor must act 'single-mindedly' for the child
Floodgates — Indeterminate Liability
Rationale (Cardoza J)= "need to avoid exposing Ds to liability in an indeterminate amount for an indeterminate time to an indeterminate
class"
13. Spartan Steel= Highway contractor cut electricity cable → steel already in furnace ruined (property damage — recoverable) + lost
profits from halted production (PEL — not recoverable)
14. Denning: if PEL recoverable, everyone affected by the power cut could claim → indeterminate liability
Howarth's Critique= Argues it is "morally arbitrary" and results in perverse outcomes where a defendant's liability decreases as the scale of
harm increases
15. Sutradhas: hundreds of thousands exposed to asbestos as British NGO missed arsenic contamination in testing of Bangladesh
irrigation wells. Lord Hoffmann: they can only be liable for the things they did, not what they didn't do
16. Howarth: this creates incentive for Ds to cause larger-scale harm due to effective immunity when scale becomes too large
17. "Proximity" in Caparo used as doctrinal label for this policy concern (Howarth) — especially in strike-out cases
18. See lord Keith on Anns Expansion in Murphy
, General Tests & Development
Historical Approach
1. Donoghue: Neighbour principle — duty for positive acts + omissions if likely to harm more closely & directly affected by act (Lord Atkin).
1. Previously duties were specialised "pockets of liability" — Lord Reid = end of "heroic age" moving towards generalisation
2. Foreseeability of C- Bourhill Young- stillbirth from hearing motorcyclist crash miles away not proximate, Hall v Gwent= prank hoax
trip to India, psychotic rage killed daughter- widow and daughter not foreseeable claimants (no knowledge of condition)
3. Critique=Lord Atkin's idea that you could devise a universal test was 'both false and dangerous' (McBride & Bagshaw)
2. Anns — 2-stage test (expansionary): authority failure to inspect building foundations before approving plans
(i) Was harm foreseeable? — sufficient proximity → prima facie duty.
(ii) Any policy factors against imposing duty?
Critique: Lord Wilberforce was over-generalising D v S- Lord Bridge in Caparo= return to 'traditional categorisation of distinct
recognisable situations'; Anns failed to respect proximity and precedent
3. Murphy — Restrictive retreat: LA approved plans, failed to note cracked foundations → PEL, no DOC. Practice statement departing from
"high watermark" approach in Anns
Lord Keith: Anns allowed a "new species of liability" that was "indeterminate in character"
Caparo Factors- NOVEL CASES
a. Reasonable foreseeability
b. Proximity
c. Fair, Just & Reasonable (FJR)
Auditors negligently produced inaccurate audit → failed to spot obvious fraud → created £100m loss → HOL claim failed. Lord Bridge: more
significance attached to categorisation of distinct situations, guiding distance, scope & limits of DOC.
GN v Poole: Caparo widely misunderstood as creating general tripartite test — truly novel situations are rare. Lord Bridge himself described
them as "convenient labels" rather than practical tests. Lord Reed in Robinson: Caparo intended to repudiate general test in favour of
analogical development.
Modern Orthodoxy — Robinson
a. Precedent for established categories → FJR already "embedded" in previous caselaw
b. Incrementalism by analogy → Caparo as analytical framework
c. Caparo for novel types only
Critique: Revisionism (O'Sullivan)
a. Re-characterising precedent — Lord Reed putting older policy-heavy cases like Hill into the general "no duty to confer a benefit"
(rather than based on concern of defensive policing)
b. Artificially separating law from policy (O'Sullivan) → novel exceptions like AofR treated as purely factual enquiries —
o Michael= 'sterile, purely factual enquiry' — liability turns on 'niceties of language and syntax used by the particular call
handler' rather than realities & pressures presented on facts
o Contrast Swinney: older approach gave 'richly textured, contextual analysis' of policy factors
Older cases on police failures:
c. Osman v Ferguson= teacher obsessive, family told police, failure to stop father & others being shot- struck out due to policy factors
(never discovered why no investigation)--> later Osman v UK= ECtHR held breach art 6 (right to fair trial) with strike out- Lord
Hoffman= content of rights should be left to parl to decide
d. Michael= Woman police call negligently downgraded, dead on arrival- no DOC not coming under exceptions (no materially worse
position)
e. Woodcock= police failure to protect woman from partner- neighbour called police who failed to warn C- exceptions rejected by COA
Policy Concerns
a. Encroaching on other areas of law:
o Rowley: child maintenance application → sratutory scheme / appeal process already in place → no DOC
o Marc Rich: ship classification society wrongly certifies ship & cargo lost— claimant's primary remedy through contract
Nature of Duty of Care
Cynical View (control device) Real Duty (normative obligation)
1. Weir = fictional retrospective tool 7. McBride: attacks cynical view → argues duty is genuinely
normative — it imposes ex ante obligation
2. Lord Goff in Smith v Littlewood: function of duty is to
identify where liability is not imposed 8. Serious injury demands more precaution so duty standard
responds to stakes
3. Lord Bingham: "blunt instrument" — unlikely to clarify law
without another control mechanism or foundation (i.e. 9. quia timet injunctions to prevent future injuries → duty
France system- stricter BOD) exists to prevent future harm, not just compensate
4. Lord Deane and Lord Goff famously observed DOC is a 10. Boyd v Ineos: injunctions against "persons unknown"
pragmatic 'control device' used to keep negligence within (fracking protesters) due to trespass & nuisance threat
practical principles 11. Weirnib: supports "Atkinian duty"- "normative unit of
5. Critique- Howarth= overarching general duty to be careful careless fault" → corrective justice (neighbour principle)
can exist even if courts excuse Ds in certain cases
6. Counter- Keating= common law "lacks the institutional
competence" to spell out duties
Doctrinal Confusion- conflation with breach + causation
Procedural shortcuts with strike out cases: forcing courts to decide on law before testing factual evidence
o X vs Bedfordshire= HOL justification that social workers perform a "difficult balancing exercise" deciding on intervention-->
O'sullivan suggests this is breach issue (i.e. would RP have acted differently) but SO case doesn't examine what they
actually did
o Lord Hoffmann: supports strike-outs to avoid pointless full-dressed trials
o Lord Bingham (in Barrett): contested policy issues are difficult to judge without evidence (strike outs)
Reallocation of fault based reasoning + policy: Courts effectively assume breach & causation are proven → use policy arguments to
rationalise fault-based reasoning
o Darnley v Croyden= COA error citing pressures of A&E receptionist job which should come under SOC not duty
o Stapleton & Burrows: advocate strict separation of DOC, BOD, and causation for analytical clarity
o O'Sullivan: notes using duty as a sifting device "artificially initiates the policy dimension" making decisions appear more
political than it actually is
o Cohen: dismisses confused duty concepts as "word charms" hiding political and ethical judicial decisions
Can fault do all the work?
D v East Berkshire= Children taken into care due to mistaken belief in abuse- parents suffering psych harm as a result of children
being taken sued- pleading in era of HRA that fault (breach) should be the control mechanism- removing confusion between duty &
breach
Lord Nicholls: approach 'not without attraction' but reservations — uncertainty- some acts/omissions do not attract liability even
where loss is foreseeable- 'Abandonment of the concept of a duty of care in English law, unless replaced by a control mechanism
which recognises this limitation, is unlikely to clarify the law. That control mechanism has yet to be identified.'
Conflict of interest argument also rejected parental claim: doctor must act 'single-mindedly' for the child
Floodgates — Indeterminate Liability
Rationale (Cardoza J)= "need to avoid exposing Ds to liability in an indeterminate amount for an indeterminate time to an indeterminate
class"
13. Spartan Steel= Highway contractor cut electricity cable → steel already in furnace ruined (property damage — recoverable) + lost
profits from halted production (PEL — not recoverable)
14. Denning: if PEL recoverable, everyone affected by the power cut could claim → indeterminate liability
Howarth's Critique= Argues it is "morally arbitrary" and results in perverse outcomes where a defendant's liability decreases as the scale of
harm increases
15. Sutradhas: hundreds of thousands exposed to asbestos as British NGO missed arsenic contamination in testing of Bangladesh
irrigation wells. Lord Hoffmann: they can only be liable for the things they did, not what they didn't do
16. Howarth: this creates incentive for Ds to cause larger-scale harm due to effective immunity when scale becomes too large
17. "Proximity" in Caparo used as doctrinal label for this policy concern (Howarth) — especially in strike-out cases
18. See lord Keith on Anns Expansion in Murphy
, General Tests & Development
Historical Approach
1. Donoghue: Neighbour principle — duty for positive acts + omissions if likely to harm more closely & directly affected by act (Lord Atkin).
1. Previously duties were specialised "pockets of liability" — Lord Reid = end of "heroic age" moving towards generalisation
2. Foreseeability of C- Bourhill Young- stillbirth from hearing motorcyclist crash miles away not proximate, Hall v Gwent= prank hoax
trip to India, psychotic rage killed daughter- widow and daughter not foreseeable claimants (no knowledge of condition)
3. Critique=Lord Atkin's idea that you could devise a universal test was 'both false and dangerous' (McBride & Bagshaw)
2. Anns — 2-stage test (expansionary): authority failure to inspect building foundations before approving plans
(i) Was harm foreseeable? — sufficient proximity → prima facie duty.
(ii) Any policy factors against imposing duty?
Critique: Lord Wilberforce was over-generalising D v S- Lord Bridge in Caparo= return to 'traditional categorisation of distinct
recognisable situations'; Anns failed to respect proximity and precedent
3. Murphy — Restrictive retreat: LA approved plans, failed to note cracked foundations → PEL, no DOC. Practice statement departing from
"high watermark" approach in Anns
Lord Keith: Anns allowed a "new species of liability" that was "indeterminate in character"
Caparo Factors- NOVEL CASES
a. Reasonable foreseeability
b. Proximity
c. Fair, Just & Reasonable (FJR)
Auditors negligently produced inaccurate audit → failed to spot obvious fraud → created £100m loss → HOL claim failed. Lord Bridge: more
significance attached to categorisation of distinct situations, guiding distance, scope & limits of DOC.
GN v Poole: Caparo widely misunderstood as creating general tripartite test — truly novel situations are rare. Lord Bridge himself described
them as "convenient labels" rather than practical tests. Lord Reed in Robinson: Caparo intended to repudiate general test in favour of
analogical development.
Modern Orthodoxy — Robinson
a. Precedent for established categories → FJR already "embedded" in previous caselaw
b. Incrementalism by analogy → Caparo as analytical framework
c. Caparo for novel types only
Critique: Revisionism (O'Sullivan)
a. Re-characterising precedent — Lord Reed putting older policy-heavy cases like Hill into the general "no duty to confer a benefit"
(rather than based on concern of defensive policing)
b. Artificially separating law from policy (O'Sullivan) → novel exceptions like AofR treated as purely factual enquiries —
o Michael= 'sterile, purely factual enquiry' — liability turns on 'niceties of language and syntax used by the particular call
handler' rather than realities & pressures presented on facts
o Contrast Swinney: older approach gave 'richly textured, contextual analysis' of policy factors
Older cases on police failures:
c. Osman v Ferguson= teacher obsessive, family told police, failure to stop father & others being shot- struck out due to policy factors
(never discovered why no investigation)--> later Osman v UK= ECtHR held breach art 6 (right to fair trial) with strike out- Lord
Hoffman= content of rights should be left to parl to decide
d. Michael= Woman police call negligently downgraded, dead on arrival- no DOC not coming under exceptions (no materially worse
position)
e. Woodcock= police failure to protect woman from partner- neighbour called police who failed to warn C- exceptions rejected by COA
Policy Concerns
a. Encroaching on other areas of law:
o Rowley: child maintenance application → sratutory scheme / appeal process already in place → no DOC
o Marc Rich: ship classification society wrongly certifies ship & cargo lost— claimant's primary remedy through contract
