Relevant factors when applying the tests
Two Principle situations:
(1) Nature of the defendants conduct/acts
Does the claim concern something that the defendant did, said or failed to do?
Acts
Easiest to prove when there is an act resulting in physical harm or to property
If the harm is foreseeable then generally:
- This will satisfy the foreseeable and proximity requirement of Caparo if physical.
- The courts take the view that in a civilised legal system, that if D choses to do something carelessly,
that they ought to be under a duty of care as we shouldn’t do things where it is foreseeable to
cause harm. (fair, just and reasonable satisfied)
Stage 3 caparo may not be satisfied even when harm is caused – Norwich CC v Harvey. This decision was
made on policy reasons as the C negated liability for the contractor, so the sub-contractor should be held
to this standard also due to insurance – not fair otherwise.
Can be a distinction between indirect and direct harm
- More likely to be a DoC when there is directly inflicted physical loss: Marc Rich v Bishops Rock
Marine, Lord Steyn: ‘The law more readily attaches the consequences of actionable negligence to
directly inflicted physical loss than to indirectly inflicted physical loss.’
In most cases, when there is a physical act a duty of care if straight forward as it comes down to
foreseeability of harm.
Statements
Hedley Bryne v Heller: (Lord Reid) – ‘Apart altogether from authority, I would think that the law must treat
negligent words differently from negligent acts.’ This is due to:
- - Words and statements ‘travel fast and far afield’.
- Words ‘are used without being expended’;
- Words ‘can cause vast financial damage’;
- Tendency for words to be spoken informally or casually
Thus, words are hard to get context from. The courts therefore need to be cautious before recognising
liability from written statements, as liability may be too onerous for potential defendants
Generally, for a duty of care to exist the court will look for a greater degree of proximity. Proximity cases
normally arise over negligent statements.
- One way of showing negligence over a statement is showing that there has been an assumption of
responsibility Hedley Byrne v Heller (1963, HL).
- statements causing physical harm: Perrett v Collins (1998, CA)
Omissions
Starting point: no duty of care even if D has the power to avert the risk – Gorringe v Calderdale MBC.
Capital & Counties v Hampshire: fire brigade have no duty to turn up, or if they turn up late due to
miscommunication – not liable. Other remedies and sanctions may be available but not in negligence. For
them to be liable there has to be a positive act that makes matters worse.
OLL v Secretary of State for transport: person in power has to act positively to be liable. The harm has to
be directly inflicted by a emergency service. Damage cannot be an indirect consequence.
Two Principle situations:
(1) Nature of the defendants conduct/acts
Does the claim concern something that the defendant did, said or failed to do?
Acts
Easiest to prove when there is an act resulting in physical harm or to property
If the harm is foreseeable then generally:
- This will satisfy the foreseeable and proximity requirement of Caparo if physical.
- The courts take the view that in a civilised legal system, that if D choses to do something carelessly,
that they ought to be under a duty of care as we shouldn’t do things where it is foreseeable to
cause harm. (fair, just and reasonable satisfied)
Stage 3 caparo may not be satisfied even when harm is caused – Norwich CC v Harvey. This decision was
made on policy reasons as the C negated liability for the contractor, so the sub-contractor should be held
to this standard also due to insurance – not fair otherwise.
Can be a distinction between indirect and direct harm
- More likely to be a DoC when there is directly inflicted physical loss: Marc Rich v Bishops Rock
Marine, Lord Steyn: ‘The law more readily attaches the consequences of actionable negligence to
directly inflicted physical loss than to indirectly inflicted physical loss.’
In most cases, when there is a physical act a duty of care if straight forward as it comes down to
foreseeability of harm.
Statements
Hedley Bryne v Heller: (Lord Reid) – ‘Apart altogether from authority, I would think that the law must treat
negligent words differently from negligent acts.’ This is due to:
- - Words and statements ‘travel fast and far afield’.
- Words ‘are used without being expended’;
- Words ‘can cause vast financial damage’;
- Tendency for words to be spoken informally or casually
Thus, words are hard to get context from. The courts therefore need to be cautious before recognising
liability from written statements, as liability may be too onerous for potential defendants
Generally, for a duty of care to exist the court will look for a greater degree of proximity. Proximity cases
normally arise over negligent statements.
- One way of showing negligence over a statement is showing that there has been an assumption of
responsibility Hedley Byrne v Heller (1963, HL).
- statements causing physical harm: Perrett v Collins (1998, CA)
Omissions
Starting point: no duty of care even if D has the power to avert the risk – Gorringe v Calderdale MBC.
Capital & Counties v Hampshire: fire brigade have no duty to turn up, or if they turn up late due to
miscommunication – not liable. Other remedies and sanctions may be available but not in negligence. For
them to be liable there has to be a positive act that makes matters worse.
OLL v Secretary of State for transport: person in power has to act positively to be liable. The harm has to
be directly inflicted by a emergency service. Damage cannot be an indirect consequence.
