1 of 33
Duty of Car
Tests
• Donoghue v Stevenson
• Principle developed by Lord Atkin to establish when duty of care might arise — (snail in bottle case
• Rule: to take reasonable care to avoid acts or omissions that could be reasonably foreseen as likely to happen
• Neighbour = someone who was so directly and closely affected by the act that one ought to have them in
contemplation as being so affected
• 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
• Anns v Merton — Lord Wilberforce 2 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 arise
2. The defendant may put forward policy considerations to negate liability
HOWEVER ANNS WAS OVERRULED IN CAPAR
• Caparo Test
• Harm to C was actually foreseen or reasonably foreseeable
• An objective test — ‘a real risk and not merely a possibility’: Smith v Littlewoods
• Requisite proximity or the NEIGHBOURHOOD PRINCIPL
• Geographical
• Temporal
• Relational
• Was there causal proximity
• Donoghue v Stevenson
• Geary v JD Wetherspoon
• C argued Geographical and Temporal proximity but the courts said that the relationship was not
suf ciently proximate
• Palmer v Tees Health Authority
• Victim must be identi able to be proximate
• 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
• Anns v Merton — Lord Wilberforce 2 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 arise
2. The defendant may put forward policy considerations to negate liability
• Fair, just and reasonable to impose a duty of car
• Voluntary Assumption of Responsibility/reliance test
• Assumption of responsibility by D towards C to conduct himself with due care
• Reciprocal reliance by C upon D
• Hedley Byrne v Heller, per Lord Morris
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, 2 of 33
• Eg. of pure economic loss not personal injur
• Wouldn't have relied on it if C knew about it
• The Incremental Tes
• Caparo
• New/novel DOC scenarios should develop incrementally
• Despite the efforts to allay fears of the oodgates, the Anns test was still considered too wid
• 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.
• A duty of care is not owed to the whole world but only to an individually foreseeable victim of harm or to a class
of whom the victim is one
• Nettleship v Weston
• Bolton v Stone
• Requirement to prove DOC applies to all scenarios in which a DOC is found, this is established by
• relying upon an existing categorisation = a ‘distinct and recognisable situation’ in which a duty has been
recognised (per Lord Bridge in Caparo) O
• ‘distinct and recognisable’ = ‘persons so closely and directly affected by the defendant’s act that the
defendant ought reasonably to have the claimant in contemplation as being so affected’
• Employer—employee, doctor—patient, teacher—pupil etc
• Analysing the scenario in accordance with the Caparo 3 Step Test + incremental test
Caveats
• Employers owe DOC to employees, but not to avoid or minimise all psychiatric illnesses which their employees
may suffer
• Hatton v Sutherland
• Doctors owe duties to patients to perform medical treatment carefully. BUT with sterilisation operations, their
duty is not to avoid or minimise all adverse consequences owing from a failed sterilisation
• McFarlane v Tayside
Unborn Claimants
• Congenital Disabilities (Civil Liability) Act 1976
• s.1(1) need for an occurrence
• 4 triggers for the Act to apply
1.
Child must be born alive (Burton v Islington) - life is separate from his/her mother: rules out still birt
2.
Child will be damaged or disabled by act or omission by defendant (as a result of an act not genetic)
3.
Must be an occurrence — foetus injured whilst in utero
4.
Claim is derivative — duty of care must have been owed to the mother and the child derives that duty of
care
• McCoy v East Midlands
• Mother delivered child at 39 weeks and was in severe distress
• Mother had scan at 37 and showed distress on the foetus’ heartbeat which was not acted upon
• Had they acted upon it he would have needed to have been delivered earlier
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, 3 of 33
• Born extremely disabled
• Failed to take earlier intervention
• Case will only occur if the DOC is xed
• Conduct fell below standard
• Issue of causation
• A mother does not owe a DOC to her child who was injured in utero or pre-conception because of her acts or
omissions
• CP v First-Tier Tribunal: CDA 1976, s.1(1)
• General immunity of mother
• Immunity is lost by mother, s.2
• By the Law Commission:
1. Create unseemly bitterness in families
2. If it turned out the mother was liable then that could be used by the father in a custody dispute (unseemly
3. Mother is unlikely to be insured because of those said activities (redistribution of the family wealth
Policy Considerations
i. oodgates
ii. defensive practices
iii. diversion of resources
iv. public good
v. ‘no-need’ factor
vi. ‘what would it achieve’ factor
vii. potential con ict
viii.for the ballot box
Bad Samaritan
• Pure omission = no liability
• No duty of care is owed by the samaritan to the victim
• Impossible to sue in negligence
• Purely a policy decision
• Problem of indeterminate liability
• (Jessup J in Horsley v MacLaren
• Gibson v Chief Constable
• Bystander that sees a blind man walking into traf c and does nothing and the man gets hit (Lord Hamilton
gave this example
• Lord Hamilton rejected a submission that, by reference to Hill, there was ‘no general duty of care owed by
the police towards private individuals’
• Reasons why bystanders should not be liabl
i. compromise of individual liberty
ii. indeterminate liability
iii. ‘why pick on me?’
iv. altruistic quality
v. imposing expenditure
vi. causation dif culties
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, 4 of 33
Good Samaritan
- Liable the moment you go to help someone
- Cattley v St John Ambulance
- C sued the volunteer that went to help them
Liability for Omissions
Stovin v Wise
• S suffered serious injuries when he was knocked off his motorcycle by a car driven by
• S pulled out on junction in which visibility of traf c was happened
• Trial judge said that W was 70% to blame and that Norfolk CC were 30% to blame because they knew the
junction was dangerou
• The CC were successful in their appeal
• The council were not liable as liability related to an omission.
• There had only been three accidents in twelve years which was not enough to render the junction a 'cluster site'
under the Council's policy for prioritising funding which required ve accidents in three years
• Lord Hoffmann on imposing liability for omissions
• “It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to
cause damage to others. It is another thing for the law to require that a person who is doing nothing in
particular shall take steps to prevent another from suffering harm from the acts of third parties or natural
causes”
Home Of ce v Dorset Yacht Co
• Yacht was damaged by boys who escaped prison of cers in nearby institution
• Boat owners sued Home Of ce
• D had failed to prevent the escape = omission
• Recovery was allowed
• As damage was done during the escape, it was foreseeable, further damage, such as when on land would not b
CASE
Woodland v Essex C
• Facts:
• C suffered serious brain injury during an accident in a swimming lesson at school
• Case concerned the extent to which the school owed one of its pupils non-delegable DOC where the school had
delegated during the course of a normal school day its responsibility for providing swimming lessons to an
independent third part
• Supreme Court Decision: Allowed the Appeal
• Lord Sumption identi ed ve ‘de ning features’ which, he said, would typically give rise to the existence of
a non-delegable duty of care and justify a departure from the general fault-based principle
1. C is a patient or child or some otherwise vulnerable or dependent person
2. Antecedent relationship between C and D which puts C in the care of D, which gives D the positive
obligation to actively protect C from harm (different from a duty to refrain from harmful conduct)
3. C has no control over how D chooses to perform these obligations
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C
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s
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:
.
e
Duty of Car
Tests
• Donoghue v Stevenson
• Principle developed by Lord Atkin to establish when duty of care might arise — (snail in bottle case
• Rule: to take reasonable care to avoid acts or omissions that could be reasonably foreseen as likely to happen
• Neighbour = someone who was so directly and closely affected by the act that one ought to have them in
contemplation as being so affected
• 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
• Anns v Merton — Lord Wilberforce 2 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 arise
2. The defendant may put forward policy considerations to negate liability
HOWEVER ANNS WAS OVERRULED IN CAPAR
• Caparo Test
• Harm to C was actually foreseen or reasonably foreseeable
• An objective test — ‘a real risk and not merely a possibility’: Smith v Littlewoods
• Requisite proximity or the NEIGHBOURHOOD PRINCIPL
• Geographical
• Temporal
• Relational
• Was there causal proximity
• Donoghue v Stevenson
• Geary v JD Wetherspoon
• C argued Geographical and Temporal proximity but the courts said that the relationship was not
suf ciently proximate
• Palmer v Tees Health Authority
• Victim must be identi able to be proximate
• 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
• Anns v Merton — Lord Wilberforce 2 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 arise
2. The defendant may put forward policy considerations to negate liability
• Fair, just and reasonable to impose a duty of car
• Voluntary Assumption of Responsibility/reliance test
• Assumption of responsibility by D towards C to conduct himself with due care
• Reciprocal reliance by C upon D
• Hedley Byrne v Heller, per Lord Morris
fi
.
e
fi
?
s
s
e
O
:
E
.
)
, 2 of 33
• Eg. of pure economic loss not personal injur
• Wouldn't have relied on it if C knew about it
• The Incremental Tes
• Caparo
• New/novel DOC scenarios should develop incrementally
• Despite the efforts to allay fears of the oodgates, the Anns test was still considered too wid
• 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.
• A duty of care is not owed to the whole world but only to an individually foreseeable victim of harm or to a class
of whom the victim is one
• Nettleship v Weston
• Bolton v Stone
• Requirement to prove DOC applies to all scenarios in which a DOC is found, this is established by
• relying upon an existing categorisation = a ‘distinct and recognisable situation’ in which a duty has been
recognised (per Lord Bridge in Caparo) O
• ‘distinct and recognisable’ = ‘persons so closely and directly affected by the defendant’s act that the
defendant ought reasonably to have the claimant in contemplation as being so affected’
• Employer—employee, doctor—patient, teacher—pupil etc
• Analysing the scenario in accordance with the Caparo 3 Step Test + incremental test
Caveats
• Employers owe DOC to employees, but not to avoid or minimise all psychiatric illnesses which their employees
may suffer
• Hatton v Sutherland
• Doctors owe duties to patients to perform medical treatment carefully. BUT with sterilisation operations, their
duty is not to avoid or minimise all adverse consequences owing from a failed sterilisation
• McFarlane v Tayside
Unborn Claimants
• Congenital Disabilities (Civil Liability) Act 1976
• s.1(1) need for an occurrence
• 4 triggers for the Act to apply
1.
Child must be born alive (Burton v Islington) - life is separate from his/her mother: rules out still birt
2.
Child will be damaged or disabled by act or omission by defendant (as a result of an act not genetic)
3.
Must be an occurrence — foetus injured whilst in utero
4.
Claim is derivative — duty of care must have been owed to the mother and the child derives that duty of
care
• McCoy v East Midlands
• Mother delivered child at 39 weeks and was in severe distress
• Mother had scan at 37 and showed distress on the foetus’ heartbeat which was not acted upon
• Had they acted upon it he would have needed to have been delivered earlier
t
fl R
y
fl
e
:
h
, 3 of 33
• Born extremely disabled
• Failed to take earlier intervention
• Case will only occur if the DOC is xed
• Conduct fell below standard
• Issue of causation
• A mother does not owe a DOC to her child who was injured in utero or pre-conception because of her acts or
omissions
• CP v First-Tier Tribunal: CDA 1976, s.1(1)
• General immunity of mother
• Immunity is lost by mother, s.2
• By the Law Commission:
1. Create unseemly bitterness in families
2. If it turned out the mother was liable then that could be used by the father in a custody dispute (unseemly
3. Mother is unlikely to be insured because of those said activities (redistribution of the family wealth
Policy Considerations
i. oodgates
ii. defensive practices
iii. diversion of resources
iv. public good
v. ‘no-need’ factor
vi. ‘what would it achieve’ factor
vii. potential con ict
viii.for the ballot box
Bad Samaritan
• Pure omission = no liability
• No duty of care is owed by the samaritan to the victim
• Impossible to sue in negligence
• Purely a policy decision
• Problem of indeterminate liability
• (Jessup J in Horsley v MacLaren
• Gibson v Chief Constable
• Bystander that sees a blind man walking into traf c and does nothing and the man gets hit (Lord Hamilton
gave this example
• Lord Hamilton rejected a submission that, by reference to Hill, there was ‘no general duty of care owed by
the police towards private individuals’
• Reasons why bystanders should not be liabl
i. compromise of individual liberty
ii. indeterminate liability
iii. ‘why pick on me?’
iv. altruistic quality
v. imposing expenditure
vi. causation dif culties
fl
fi
fl
s
)
)
fi
e
fi
)
)
, 4 of 33
Good Samaritan
- Liable the moment you go to help someone
- Cattley v St John Ambulance
- C sued the volunteer that went to help them
Liability for Omissions
Stovin v Wise
• S suffered serious injuries when he was knocked off his motorcycle by a car driven by
• S pulled out on junction in which visibility of traf c was happened
• Trial judge said that W was 70% to blame and that Norfolk CC were 30% to blame because they knew the
junction was dangerou
• The CC were successful in their appeal
• The council were not liable as liability related to an omission.
• There had only been three accidents in twelve years which was not enough to render the junction a 'cluster site'
under the Council's policy for prioritising funding which required ve accidents in three years
• Lord Hoffmann on imposing liability for omissions
• “It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to
cause damage to others. It is another thing for the law to require that a person who is doing nothing in
particular shall take steps to prevent another from suffering harm from the acts of third parties or natural
causes”
Home Of ce v Dorset Yacht Co
• Yacht was damaged by boys who escaped prison of cers in nearby institution
• Boat owners sued Home Of ce
• D had failed to prevent the escape = omission
• Recovery was allowed
• As damage was done during the escape, it was foreseeable, further damage, such as when on land would not b
CASE
Woodland v Essex C
• Facts:
• C suffered serious brain injury during an accident in a swimming lesson at school
• Case concerned the extent to which the school owed one of its pupils non-delegable DOC where the school had
delegated during the course of a normal school day its responsibility for providing swimming lessons to an
independent third part
• Supreme Court Decision: Allowed the Appeal
• Lord Sumption identi ed ve ‘de ning features’ which, he said, would typically give rise to the existence of
a non-delegable duty of care and justify a departure from the general fault-based principle
1. C is a patient or child or some otherwise vulnerable or dependent person
2. Antecedent relationship between C and D which puts C in the care of D, which gives D the positive
obligation to actively protect C from harm (different from a duty to refrain from harmful conduct)
3. C has no control over how D chooses to perform these obligations
S
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C
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s
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.
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