Introduction
Negligence and duty of care
Negligence = breach of a legal duty to take care by the defendant resulting in loss or damage
to the claimant
Parties
Tort
Loss or Damage
Duty
Breach
Causation
Remoteness
Defences
Loss
Common losses:
• Physical/bodily injury
• Psychiatric harm
• Property damage
• Consequential economic loss
(i.e. economic loss which resulted from personal injury/property damage)
• Pure economic loss
(e.g. lost savings from a bad investment)
, Duty of Care
“The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour” – Lord Atkin, Donoghue and Stevenson [1932]
Is duty of care owed?
A defendant cannot be liable for carelessness unless the law requires them to be careful.
Donoghue v Stevenson [1932]
• First case to establish duty of care
• Claimant’s friend bought her a ginger beer in an opaque bottle
• After drinking come the claimant found a decomposing snail,
• Claimant claimed it made her sick but unable to sue the cafe owner and she did not buy
the ginger beer and there was no contract between them.
• Sued the manufacturer instead.
• House of Lords decided that the manufacturer owed a duty of care to the customer.
After Donoghue duty of care was imposed in many new situation. Courts brought the expansiveness to
and end in this case and established a 3 stage test (when there is no precedent):
Caparo v Dickman []
Three stage test/Caparo criteria
Foreseeability of harm
Objective test. Not what the individual defendant foresaw but what the reasonable person
would be expected to see.
Proximity
There must be a relationship of sufficient closeness between claimant and defendant.
Fair, just and reasonable
It must be these things to impose a duty.
Starting point when determining if there is a duty of care in a novel case in using the Caparo criteria and
developing the scope of duty of care incrementally and by analogy with established authority.
,Analogy with established authority
• In many cases there is established authority (precedent). In these cases no need to apply test.
• Normally only novel cases with no established duty that the court needs to decide if there
is a duty of care owed.
Drawing an anology
means identifying the legally significant features of the earlier case. What duty was found or not
found in the previous case?
In many cases the signigicant feature is the connection between the claimant and defendant (proximity).
Therefore proximity remains important. For example where a defendant
assumes responsibility for the claimant.
Fair, just and reasonable
The courts will consider the impact of a decision socially, politically and economically on society
as a whole.
Policy considerations are things like:
• Floodgates – The fear that allowing one claim would cause a “flood” of other claims.
• Insurance – Defendant is more likely to be liable if they are insured.
• Crushing liability – Concern that finding a party liable would mean paying disproportional damages.
• Deterrence – Impose to deter people.
• Maintenance of high standards
• Defensive practices – Where parties act in a undesirable way in an effort to avoid claims.
Robinson v Chief Constable of West Yorkshire Police [2018]
• Where there is no clear precedent, the question of whether to impose a duty should
be approached by analogy.
Examples of cases with precedent
Nettleship v Weston [1971]
• A driver owes a duty of care to other road users not to cause them physical injury by careless driving.
Cassidy v Ministry of Health [1951]
• Medical professionals owe a duty of care to patients once they have accepted them for treatment.
Baker v T.E. Hopkins & Sons Ltd [1959]
• Dr Baker knowingly descended into a well containing poisonous fumes to recue two workers.
He died from the fumes.
• Dr Baker was owed a duty of care as it was reasonably foreseeable that someone would seek
to rescue the workers.
Robinson v Chief Constable of West Yorkshire Police [2018]
• The police owe a duty of care to the public to protect them from reasonably foreseeable physical
injury when carrying out an arrest.
, Establishing duty of care with no precedent
Watson v British Boxing Board of Control [2001]
• Boxer claimed that immediate medical attention should have been available at the ringside.
• The injury was foreseeable (brain damage)
• The defendant had assumed responsibility (they determined the nature of the medical facilities and
the assistance to be provided to boxers).
• It was fair, just and reasonable to impose a duty.
• No policy considerations as duty would not necessarily extend to other sporting organisations and fact
that defendant was a not-for-profit should not provide immunity.
Is there a precedent for duty of care?
Yes No
Apply precedent Duty imposed by analogy?
Harm must be reasonably foreseeable
Relationship between claimant and defendant? (proximity)
Fair, just and reasonable? Any policy considerations?
Negligence and duty of care
Negligence = breach of a legal duty to take care by the defendant resulting in loss or damage
to the claimant
Parties
Tort
Loss or Damage
Duty
Breach
Causation
Remoteness
Defences
Loss
Common losses:
• Physical/bodily injury
• Psychiatric harm
• Property damage
• Consequential economic loss
(i.e. economic loss which resulted from personal injury/property damage)
• Pure economic loss
(e.g. lost savings from a bad investment)
, Duty of Care
“The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour” – Lord Atkin, Donoghue and Stevenson [1932]
Is duty of care owed?
A defendant cannot be liable for carelessness unless the law requires them to be careful.
Donoghue v Stevenson [1932]
• First case to establish duty of care
• Claimant’s friend bought her a ginger beer in an opaque bottle
• After drinking come the claimant found a decomposing snail,
• Claimant claimed it made her sick but unable to sue the cafe owner and she did not buy
the ginger beer and there was no contract between them.
• Sued the manufacturer instead.
• House of Lords decided that the manufacturer owed a duty of care to the customer.
After Donoghue duty of care was imposed in many new situation. Courts brought the expansiveness to
and end in this case and established a 3 stage test (when there is no precedent):
Caparo v Dickman []
Three stage test/Caparo criteria
Foreseeability of harm
Objective test. Not what the individual defendant foresaw but what the reasonable person
would be expected to see.
Proximity
There must be a relationship of sufficient closeness between claimant and defendant.
Fair, just and reasonable
It must be these things to impose a duty.
Starting point when determining if there is a duty of care in a novel case in using the Caparo criteria and
developing the scope of duty of care incrementally and by analogy with established authority.
,Analogy with established authority
• In many cases there is established authority (precedent). In these cases no need to apply test.
• Normally only novel cases with no established duty that the court needs to decide if there
is a duty of care owed.
Drawing an anology
means identifying the legally significant features of the earlier case. What duty was found or not
found in the previous case?
In many cases the signigicant feature is the connection between the claimant and defendant (proximity).
Therefore proximity remains important. For example where a defendant
assumes responsibility for the claimant.
Fair, just and reasonable
The courts will consider the impact of a decision socially, politically and economically on society
as a whole.
Policy considerations are things like:
• Floodgates – The fear that allowing one claim would cause a “flood” of other claims.
• Insurance – Defendant is more likely to be liable if they are insured.
• Crushing liability – Concern that finding a party liable would mean paying disproportional damages.
• Deterrence – Impose to deter people.
• Maintenance of high standards
• Defensive practices – Where parties act in a undesirable way in an effort to avoid claims.
Robinson v Chief Constable of West Yorkshire Police [2018]
• Where there is no clear precedent, the question of whether to impose a duty should
be approached by analogy.
Examples of cases with precedent
Nettleship v Weston [1971]
• A driver owes a duty of care to other road users not to cause them physical injury by careless driving.
Cassidy v Ministry of Health [1951]
• Medical professionals owe a duty of care to patients once they have accepted them for treatment.
Baker v T.E. Hopkins & Sons Ltd [1959]
• Dr Baker knowingly descended into a well containing poisonous fumes to recue two workers.
He died from the fumes.
• Dr Baker was owed a duty of care as it was reasonably foreseeable that someone would seek
to rescue the workers.
Robinson v Chief Constable of West Yorkshire Police [2018]
• The police owe a duty of care to the public to protect them from reasonably foreseeable physical
injury when carrying out an arrest.
, Establishing duty of care with no precedent
Watson v British Boxing Board of Control [2001]
• Boxer claimed that immediate medical attention should have been available at the ringside.
• The injury was foreseeable (brain damage)
• The defendant had assumed responsibility (they determined the nature of the medical facilities and
the assistance to be provided to boxers).
• It was fair, just and reasonable to impose a duty.
• No policy considerations as duty would not necessarily extend to other sporting organisations and fact
that defendant was a not-for-profit should not provide immunity.
Is there a precedent for duty of care?
Yes No
Apply precedent Duty imposed by analogy?
Harm must be reasonably foreseeable
Relationship between claimant and defendant? (proximity)
Fair, just and reasonable? Any policy considerations?
