Duty of Care Lecture
What is a ‘Duty of Care’?
Duty of care constitutes the first of the three primary elements of tort
(duty of care, breach and causation). Whilst there are many situations in
which an individual might have acted carelessly, unless they have a duty
of care to the person harmed by their carelessness, then no claim will
arise. This is a key point - whilst a case (or problem question) might
present the clearest existence of breach and causation possible, it will fail
if duty of care is not present at the time of the breach.
Although the term ‘duty of care’ can seem a little alien at first, it can
roughly be thought of a responsibility of an individual to not harm others
through carelessness. For example, a driver on the road has a
responsibility to other road users to not cause an accident through driving
carelessly. In other words: they have a duty of care to other road users.
Because of its ability to make or break a given case, duty of care is often
thought of as a ‘control mechanism’ within the law - essentially, a way for
the courts to make a distinction between cases which are legally
significant, and therefore worth pursuing, and those cases which do not
merit legal attention.
The Development of the Duty of Care
The legal basis for finding a duty of care has its roots in Donoghue v
Stevenson [1932] AC 562. Although, as will be noted below, there exists a
more modern test to establish a duty of care, Donoghue v
Stevenson provides the theoretical basis for the duty of care, and thus
modern negligence, and so it is necessary to be familiar with the case.
Before Donoghue v Stevenson, the concept of duty of care did not exist in
any particularly notable form within the English law. This meant that
unless a plaintiff had a contract with a defendant, they had no means of
bringing a case in negligence. This led to a considerable number of
injustices when individuals were injured by clear instances of negligence.
An example of this phenomenon can be seen in Winterbottom v
Wright (1842) 10 M&W 109. In the case, the defendant (Wright) was
contracted by the UK’s Postmaster-General to maintain a horse-drawn
mail coach in a safe state. The plaintiff (Winterbottom) was also
contracted by the Postmaster-General to drive the coach between
destinations but was injured when the coach collapsed due to disrepair.
Although it was clear that Wright had acted negligently, the courts held
that Winterbottom could not sue Wright, because a contract did not exist
between the two. In essence, the contract concept of privity prevented
legal action.
,It does not take a huge amount of insight to see the problems that might
have arisen as a result of the above decision. For example, a consumer
injured by a bottle mistakenly filled with acid rather than soda would have
no legal recourse if somebody else purchased the soda for them.
Similarly, since road users do not have contracts with each other, none
could be said to owe each other a duty of care, no matter how
dangerously they were driving. This is clearly problematic - we want our
soda producers to ensure their products are safe, and we want drivers on
the road to be careful, and the threat of being sued is a useful deterrent
to unsafe behaviour.
It is, therefore, fortunate that the courts established the generally
applicable concept of duty of care in Donoghuev Stevenson. It should be
noted that the concept of a duty of care was not created specifically
in Donoghue; instead, it was restricted to a few, highly specific situations.
Thus, statements that the courts ‘invented’ or ‘created’ the duty of care
concept in Donoghue are false, and should be avoided. Instead the courts
can be thought of as greatly widening the remit of the concept.
Key to the decision is the reasoning of Lord Atkin (who led the majority of
the court). Atkin held that a general duty of care could be said to exist
between two parties under the ‘neighbour principle’, described in this key
quote:
“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 into question.”
Lord Atkin, Donoghue v Stevenson, at 44.
Thus, Stevenson should have taken reasonable care to avoid snails or
similar from getting into its products, because it is foreseeable that they
might harm someone who consumed them. Notably, Atkin also posits (at
57) that to reject the neighbour principle (and thus the wider application
of the duty of care concept) would be unjust, as it would allow
manufacturers to knowingly send faulty products out into the world to
injure consumers.
However, Lord Atkin’s description of the neighbour principle is relatively
broad in scope, and is thus inclusive of a wide range of situations. As a
result of this, a number of cases subsequently sought to limit the
application of the neighbour principle, such as limiting it to cases involving
physical harm or damage to property (Old Gate Estates Ltd v Toplis &
Harding & Russell[1939] 3 All ER 209).
,Following these restrictions, the law once again returned towards the
application of a universal principle, with Anns v Merton London
Borough[1978] AC 728 establishing a two-part test similar to the one
employed in Donoghue. The first part of the Anns test essentially
recreates the neighbour principle - a duty can be said to exist where it is
foreseeable that someone will be harmed as a result of negligence. The
second part, however, includes the caveat that the defence can argue
against the existence of a duty with reasons of policy. It should be noted
that whilst Anns has been rejected by the UK, it is still in use in a number
of other commonwealth jurisdictions.
The Anns approach was rejected once again in favour of the test laid down
in Caparo Industries v Dickman [1990] 2 AC 605 test, which is the
currently applicable test for establishing a duty of care. This is discussed
in the next section.
Caparo constitutes the currently applicable test for establishing a duty of
care, and thus it is important that you have an in-depth knowledge of the
how the test is applied. It is worth noting, however, that the test should
only be applied in full in situations which do not involve a pre-defined duty
of care. Such situations include doctor-patient, solicitor-client,
manufacturer-consumer and employer-employee relationships, as well as
situations involving one road user and another. It will be sufficient to
simply state that the duty of care in such a situation has long been
established (thus, allowing the use of exam time or essay word counts on
more important matters.) Indeed, this is the process undertaken by the
courts - they will first look to see if there is an established legal position
on the relationship between the two parties before applying Caparo and
examining whether a new duty of care should be created.
The Caparo test is made up of three
stages: foreseeability, proximity and fairness. This first stage revolves
around whether it is foreseeable that the defendant’s carelessness could
cause damage to the claimant. A prime example of foreseeability can be
seen in the US-based case of Palsgraf v Long Island Railroad Co [1928]
248 N.Y. 339. In the case, the defendant dropped a box of fireworks,
which caused an explosion, which in turn caused a set of heavy metal
scales to fall onto the claimant, injuring her. Although it was possible to
trace the claimant’s injuries to the defendant’s negligence, the court
denied the claim - in applying a test of foreseeability, the courts found
that it was not foreseeable that the claimant would be injured. In contrast,
consider what would have happened had the claimant been injured by the
explosion itself - it would be quite foreseeable that dropping fireworks (of
the variety found in 1928) would cause an explosion, and that that
explosion might injure someone standing close enough. If this had been
the case, then the courts would have likely found the harm to be
foreseeable.
, The second stage is based on whether there is a relationship
of proximity between the defendant and the claimant. This does not
dictate that there must be physical proximity between claimant and
defendant, rather that there must be a connection between the two. An
example of proximity (or, rather, a lack of proximity) can be seen
in Alcock v Chief Constable of South Yorkshire Police[1991] UKHL 5 -
members of the general public coming across the aftermath of the
Hillsborough disaster and suffering nervous shock as a result were held to
not be owed a duty of care by the defendants, because the link between
the defendants and claimants was held to be too distant.
The third and final stage of Caparo involves establishing whether it would
be fair, just and reasonable for the courts to find that the defendant
owed a duty of care to the claimant. Owing to the vague nature of this
criteria, this stage can be thought of as somewhat of a ‘safety valve’,
allowing judicial discretion in cases where public policy might dictate that
it would be unreasonable for a duty of care to be held to exist. Examples
of the use of this criteria can be seen in cases like Marc Rich & Co v
Bishop Rock Marine Co Ltd[1995] UKHL: a ship surveyor negligently
carried out a safety survey on a ship which later sunk. The courts found
that it would not be just for a duty of care to be found between the
surveyor and the owner of cargo on board the surveyed ship. Although
finding both foreseeability and proximity, the courts noted (at p.22
onwards) that it was an industry-standard for such claims to be settled
between the cargo owner and the ship owner - both of whom bore
insurance to that end. It was, thus, decided that it would be unjust to
place liability onto the safety surveyors. Despite the apparent wide-range
of cases in which this stage can be used to defeat a claim, it is worth
noting as per X (Minors) v Bedfordshire County Council[1995] 2 AC 633 (at
749), that the presumption will usually be that this stage will be passed,
unless convincing precedent exists.
So, if all three of these stages are passed, the case can be said to have
satisfied the Caparo test, and thus a duty of care can be said to exist.
Exceptions and Special Situations
There exists a significant variety of situations in which establishing a duty
of care becomes more complicated than simply applying the Caparo test.
These situations will often feature in problem questions as a way of
testing the completeness of your knowledge, and so it is important to be
aware of them.
Liability for Omissions
Whilst a duty of care dictates that a person should not act in a way which
causes harm, in general they do not force people to take an act to prevent
harm from occurring. Thus, whilst a driver has a duty to not cause an
accident through carelessness, they do not have a duty to help those
What is a ‘Duty of Care’?
Duty of care constitutes the first of the three primary elements of tort
(duty of care, breach and causation). Whilst there are many situations in
which an individual might have acted carelessly, unless they have a duty
of care to the person harmed by their carelessness, then no claim will
arise. This is a key point - whilst a case (or problem question) might
present the clearest existence of breach and causation possible, it will fail
if duty of care is not present at the time of the breach.
Although the term ‘duty of care’ can seem a little alien at first, it can
roughly be thought of a responsibility of an individual to not harm others
through carelessness. For example, a driver on the road has a
responsibility to other road users to not cause an accident through driving
carelessly. In other words: they have a duty of care to other road users.
Because of its ability to make or break a given case, duty of care is often
thought of as a ‘control mechanism’ within the law - essentially, a way for
the courts to make a distinction between cases which are legally
significant, and therefore worth pursuing, and those cases which do not
merit legal attention.
The Development of the Duty of Care
The legal basis for finding a duty of care has its roots in Donoghue v
Stevenson [1932] AC 562. Although, as will be noted below, there exists a
more modern test to establish a duty of care, Donoghue v
Stevenson provides the theoretical basis for the duty of care, and thus
modern negligence, and so it is necessary to be familiar with the case.
Before Donoghue v Stevenson, the concept of duty of care did not exist in
any particularly notable form within the English law. This meant that
unless a plaintiff had a contract with a defendant, they had no means of
bringing a case in negligence. This led to a considerable number of
injustices when individuals were injured by clear instances of negligence.
An example of this phenomenon can be seen in Winterbottom v
Wright (1842) 10 M&W 109. In the case, the defendant (Wright) was
contracted by the UK’s Postmaster-General to maintain a horse-drawn
mail coach in a safe state. The plaintiff (Winterbottom) was also
contracted by the Postmaster-General to drive the coach between
destinations but was injured when the coach collapsed due to disrepair.
Although it was clear that Wright had acted negligently, the courts held
that Winterbottom could not sue Wright, because a contract did not exist
between the two. In essence, the contract concept of privity prevented
legal action.
,It does not take a huge amount of insight to see the problems that might
have arisen as a result of the above decision. For example, a consumer
injured by a bottle mistakenly filled with acid rather than soda would have
no legal recourse if somebody else purchased the soda for them.
Similarly, since road users do not have contracts with each other, none
could be said to owe each other a duty of care, no matter how
dangerously they were driving. This is clearly problematic - we want our
soda producers to ensure their products are safe, and we want drivers on
the road to be careful, and the threat of being sued is a useful deterrent
to unsafe behaviour.
It is, therefore, fortunate that the courts established the generally
applicable concept of duty of care in Donoghuev Stevenson. It should be
noted that the concept of a duty of care was not created specifically
in Donoghue; instead, it was restricted to a few, highly specific situations.
Thus, statements that the courts ‘invented’ or ‘created’ the duty of care
concept in Donoghue are false, and should be avoided. Instead the courts
can be thought of as greatly widening the remit of the concept.
Key to the decision is the reasoning of Lord Atkin (who led the majority of
the court). Atkin held that a general duty of care could be said to exist
between two parties under the ‘neighbour principle’, described in this key
quote:
“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 into question.”
Lord Atkin, Donoghue v Stevenson, at 44.
Thus, Stevenson should have taken reasonable care to avoid snails or
similar from getting into its products, because it is foreseeable that they
might harm someone who consumed them. Notably, Atkin also posits (at
57) that to reject the neighbour principle (and thus the wider application
of the duty of care concept) would be unjust, as it would allow
manufacturers to knowingly send faulty products out into the world to
injure consumers.
However, Lord Atkin’s description of the neighbour principle is relatively
broad in scope, and is thus inclusive of a wide range of situations. As a
result of this, a number of cases subsequently sought to limit the
application of the neighbour principle, such as limiting it to cases involving
physical harm or damage to property (Old Gate Estates Ltd v Toplis &
Harding & Russell[1939] 3 All ER 209).
,Following these restrictions, the law once again returned towards the
application of a universal principle, with Anns v Merton London
Borough[1978] AC 728 establishing a two-part test similar to the one
employed in Donoghue. The first part of the Anns test essentially
recreates the neighbour principle - a duty can be said to exist where it is
foreseeable that someone will be harmed as a result of negligence. The
second part, however, includes the caveat that the defence can argue
against the existence of a duty with reasons of policy. It should be noted
that whilst Anns has been rejected by the UK, it is still in use in a number
of other commonwealth jurisdictions.
The Anns approach was rejected once again in favour of the test laid down
in Caparo Industries v Dickman [1990] 2 AC 605 test, which is the
currently applicable test for establishing a duty of care. This is discussed
in the next section.
Caparo constitutes the currently applicable test for establishing a duty of
care, and thus it is important that you have an in-depth knowledge of the
how the test is applied. It is worth noting, however, that the test should
only be applied in full in situations which do not involve a pre-defined duty
of care. Such situations include doctor-patient, solicitor-client,
manufacturer-consumer and employer-employee relationships, as well as
situations involving one road user and another. It will be sufficient to
simply state that the duty of care in such a situation has long been
established (thus, allowing the use of exam time or essay word counts on
more important matters.) Indeed, this is the process undertaken by the
courts - they will first look to see if there is an established legal position
on the relationship between the two parties before applying Caparo and
examining whether a new duty of care should be created.
The Caparo test is made up of three
stages: foreseeability, proximity and fairness. This first stage revolves
around whether it is foreseeable that the defendant’s carelessness could
cause damage to the claimant. A prime example of foreseeability can be
seen in the US-based case of Palsgraf v Long Island Railroad Co [1928]
248 N.Y. 339. In the case, the defendant dropped a box of fireworks,
which caused an explosion, which in turn caused a set of heavy metal
scales to fall onto the claimant, injuring her. Although it was possible to
trace the claimant’s injuries to the defendant’s negligence, the court
denied the claim - in applying a test of foreseeability, the courts found
that it was not foreseeable that the claimant would be injured. In contrast,
consider what would have happened had the claimant been injured by the
explosion itself - it would be quite foreseeable that dropping fireworks (of
the variety found in 1928) would cause an explosion, and that that
explosion might injure someone standing close enough. If this had been
the case, then the courts would have likely found the harm to be
foreseeable.
, The second stage is based on whether there is a relationship
of proximity between the defendant and the claimant. This does not
dictate that there must be physical proximity between claimant and
defendant, rather that there must be a connection between the two. An
example of proximity (or, rather, a lack of proximity) can be seen
in Alcock v Chief Constable of South Yorkshire Police[1991] UKHL 5 -
members of the general public coming across the aftermath of the
Hillsborough disaster and suffering nervous shock as a result were held to
not be owed a duty of care by the defendants, because the link between
the defendants and claimants was held to be too distant.
The third and final stage of Caparo involves establishing whether it would
be fair, just and reasonable for the courts to find that the defendant
owed a duty of care to the claimant. Owing to the vague nature of this
criteria, this stage can be thought of as somewhat of a ‘safety valve’,
allowing judicial discretion in cases where public policy might dictate that
it would be unreasonable for a duty of care to be held to exist. Examples
of the use of this criteria can be seen in cases like Marc Rich & Co v
Bishop Rock Marine Co Ltd[1995] UKHL: a ship surveyor negligently
carried out a safety survey on a ship which later sunk. The courts found
that it would not be just for a duty of care to be found between the
surveyor and the owner of cargo on board the surveyed ship. Although
finding both foreseeability and proximity, the courts noted (at p.22
onwards) that it was an industry-standard for such claims to be settled
between the cargo owner and the ship owner - both of whom bore
insurance to that end. It was, thus, decided that it would be unjust to
place liability onto the safety surveyors. Despite the apparent wide-range
of cases in which this stage can be used to defeat a claim, it is worth
noting as per X (Minors) v Bedfordshire County Council[1995] 2 AC 633 (at
749), that the presumption will usually be that this stage will be passed,
unless convincing precedent exists.
So, if all three of these stages are passed, the case can be said to have
satisfied the Caparo test, and thus a duty of care can be said to exist.
Exceptions and Special Situations
There exists a significant variety of situations in which establishing a duty
of care becomes more complicated than simply applying the Caparo test.
These situations will often feature in problem questions as a way of
testing the completeness of your knowledge, and so it is important to be
aware of them.
Liability for Omissions
Whilst a duty of care dictates that a person should not act in a way which
causes harm, in general they do not force people to take an act to prevent
harm from occurring. Thus, whilst a driver has a duty to not cause an
accident through carelessness, they do not have a duty to help those
