Duty of Care
Tort of negligence
- Exists if:
o A duty of care existed (legal duty of care)
o The duty was breached
o The breach caused damage (causation)
o The type of damage caused was foreseeable (remoteness of damage)
elements overlap and are regarded as interchangeable. They can be used to restrict or
extend liability. “The categories of negligence are never closed” (Lord MacMillan –
Donoghue)
type of damage (physical or psychiatric affects likelihood of liability)
Duty of Care
Established duty situations
Up until 20th century, duties of care arose only out of contract. Changed by Donoghue v
Stevenson
- One road user to another
- Employer to employee
- Manufacturer to consumer – Donoghue v Stevenson
- Doctor to patient
- Solicitor to client
Outside these categories, for “novel duty of care situations”, the existence of one will be
determined by case law. Lord Atkin “neighbor principle”.
Novel duty of care situations
Donoghue v Stevenson
Facts:
- Mrs. Donoghue’s friend bought her a bottle of ginger beer. The remains of a
decomposed snail turned out to have been in the bottle. Mrs. Donoghue developed
gastroenteritis as a result of drinking the contaminated beer.
- No contract between C and D (as she didn’t buy it herself).
1
,Ratio decidendi:
- HoL found liability where D had manufactured a defective product, which caused
injury to the ultimate consumer, C.
- Manufacturers own consumers a duty of care where:
o They sell goods that they expect will reach the ultimate consumer in the form
in which they left him,
o Without being subject to intermediate inspection
o And, knowing that if they don’t use reasonable care in the production of the
product, there will be an injury to the person’s life or property
o there is a proximate relationship between the manufacturer and the
ultimate consum er, as long as there is no interference from anyone else in
between.
Obiter Dictum:
- Lord Atkin’s neighbor principle
o “The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour; and the lawyer's question, Who is my neighbour?
receives a restricted reply. 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 in question.”
Anns v Merton
- 2 stage-test for existence of duty of care – Lord Wilberforce
- No distinction between “proximity of parties and “foreseeability of harm” which
would mean that there is always a duty of care somewhere. Limits of this would
then, in a 2nd stage be decided by policy.
- Test overruled in 1991 by Murphy v Brentwood
o Distinction between property damage and economic loss
2
,Caparo Industries plc v Dickman (1990)
- Test for novel duty of care categories. “Should develop incrementally and by
analogy” (Lord Bridge)
- Emergences of 3-stage test for novel duty of care
o 1. Foreseeability of harm
o 2. Proximity of parties
o 3. Fair, just and reasonable to impose duty? --> policy question
- Effect of Michael v Chief Constable of South Wales (2015)
o Did the police owe a duty of care? No, for policy reasons
o Concluded the 3-stage test is not law but rather just a test/guide
Proximity element
- Capital Counties v Hampshire
o Fire brigade doesn’t have a duty to answer emergency calls nor to fight fire
with reasonable skill -> floodgates
o They have a duty not to make the fire worse when they do (which they did in
this case by turning the sprinklers off)
- Hill v Chief Constable West Yorkshire
o Question whether the police owed Miss. Hill a duty of care
Case failed on the grounds of proximityx
They can’t reasonably expect the police to have a duty of care
to every young woman who could be in danger
No general duty of care owed to individual members of the
public by responsible authorities
Case also failed on the basis of policy
If the police did have a duty of care, police discretion would be
limited and exercised in a defensive frame of mind
- Osman v UK
o Police didn’t do anything about a crazy person harassing 15-year-old Osman
who eventually kills the boy’s father and injures the boy. Family brings an
action for negligence against the police
o Court of Appeal held that there was no duty of care by the police on the
grounds of policy --> gives the police “blanket immunity”
o Case goes to the European Court of Human Rights
Decides that failing to prosecute the police violates Article 6, the right
to a fair trial
--> Shows importance of the European Court of Human Rights
3
, 4
Tort of negligence
- Exists if:
o A duty of care existed (legal duty of care)
o The duty was breached
o The breach caused damage (causation)
o The type of damage caused was foreseeable (remoteness of damage)
elements overlap and are regarded as interchangeable. They can be used to restrict or
extend liability. “The categories of negligence are never closed” (Lord MacMillan –
Donoghue)
type of damage (physical or psychiatric affects likelihood of liability)
Duty of Care
Established duty situations
Up until 20th century, duties of care arose only out of contract. Changed by Donoghue v
Stevenson
- One road user to another
- Employer to employee
- Manufacturer to consumer – Donoghue v Stevenson
- Doctor to patient
- Solicitor to client
Outside these categories, for “novel duty of care situations”, the existence of one will be
determined by case law. Lord Atkin “neighbor principle”.
Novel duty of care situations
Donoghue v Stevenson
Facts:
- Mrs. Donoghue’s friend bought her a bottle of ginger beer. The remains of a
decomposed snail turned out to have been in the bottle. Mrs. Donoghue developed
gastroenteritis as a result of drinking the contaminated beer.
- No contract between C and D (as she didn’t buy it herself).
1
,Ratio decidendi:
- HoL found liability where D had manufactured a defective product, which caused
injury to the ultimate consumer, C.
- Manufacturers own consumers a duty of care where:
o They sell goods that they expect will reach the ultimate consumer in the form
in which they left him,
o Without being subject to intermediate inspection
o And, knowing that if they don’t use reasonable care in the production of the
product, there will be an injury to the person’s life or property
o there is a proximate relationship between the manufacturer and the
ultimate consum er, as long as there is no interference from anyone else in
between.
Obiter Dictum:
- Lord Atkin’s neighbor principle
o “The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour; and the lawyer's question, Who is my neighbour?
receives a restricted reply. 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 in question.”
Anns v Merton
- 2 stage-test for existence of duty of care – Lord Wilberforce
- No distinction between “proximity of parties and “foreseeability of harm” which
would mean that there is always a duty of care somewhere. Limits of this would
then, in a 2nd stage be decided by policy.
- Test overruled in 1991 by Murphy v Brentwood
o Distinction between property damage and economic loss
2
,Caparo Industries plc v Dickman (1990)
- Test for novel duty of care categories. “Should develop incrementally and by
analogy” (Lord Bridge)
- Emergences of 3-stage test for novel duty of care
o 1. Foreseeability of harm
o 2. Proximity of parties
o 3. Fair, just and reasonable to impose duty? --> policy question
- Effect of Michael v Chief Constable of South Wales (2015)
o Did the police owe a duty of care? No, for policy reasons
o Concluded the 3-stage test is not law but rather just a test/guide
Proximity element
- Capital Counties v Hampshire
o Fire brigade doesn’t have a duty to answer emergency calls nor to fight fire
with reasonable skill -> floodgates
o They have a duty not to make the fire worse when they do (which they did in
this case by turning the sprinklers off)
- Hill v Chief Constable West Yorkshire
o Question whether the police owed Miss. Hill a duty of care
Case failed on the grounds of proximityx
They can’t reasonably expect the police to have a duty of care
to every young woman who could be in danger
No general duty of care owed to individual members of the
public by responsible authorities
Case also failed on the basis of policy
If the police did have a duty of care, police discretion would be
limited and exercised in a defensive frame of mind
- Osman v UK
o Police didn’t do anything about a crazy person harassing 15-year-old Osman
who eventually kills the boy’s father and injures the boy. Family brings an
action for negligence against the police
o Court of Appeal held that there was no duty of care by the police on the
grounds of policy --> gives the police “blanket immunity”
o Case goes to the European Court of Human Rights
Decides that failing to prosecute the police violates Article 6, the right
to a fair trial
--> Shows importance of the European Court of Human Rights
3
, 4
