C1 W2 - NEGLIGENCE: DUTY OF CARE
READING:
* McBride and Bagshaw, pp 79-121, 142-152, 185-219
Donoghue v Stevenson [1932] AC 562 (HL)
Anns v Merton London Borough Council [1978] AC 728 (HL) at pp 751-752
* Caparo Industries plc v Dickman [1990] 2 AC 605 (HL)
The Nicholas H (Marc Rich & Co Ltd v Bishop Rock Marine Co Ltd) [1996} AC 211 (HL)
Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732
* Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736
FURTHER READING:
Robertson, ‘Justice, Community Welfare and the Duty of Care’ (2011) 127 LQR 370
Tofaris and Steel, ‘Negligence Liability for Omissions and the Police’ [2016] CLJ 128
QUESTIONS
1. What are the elements of the tort of negligence?
Duty
i. D owed C duty of care (i.e. duty to take reasonable care not to cause him a particular
type of injury).
Breach
i. D breached that duty of care.
Causation (and remoteness)
i. D’s breach of a duty was a cause of C’s injury
Defences
i. D has no defence to C’s claim
2. What was the significance of Donoghue v Stevenson?
Snail in the ginger beer. Donoghue who was drunk but did not buy the drink herself sues to manager,
Stevenson. Did Stevenson owe her a duty of care? YES! This was a difficult case to decide as there was
NO precedent.
Donoghue marks a break from the approach of the prior cases, by which duties of care arise only
where there is precedent on finding a duty on such facts.
“There must be, and is, some general conception of relations giving rise to a duty of care, of which the
particular cases found in the books are but instances”. – Lord Atkin
There was no similar case to apply to this case. The old approach of using precedent would mean
there is no duty of care so Donoghue’s argument that the duty of care shouldn’t be tied to precedent
is the one that the Lords accepted. The relevant principle is enough.
It also created the neighbour principle.
3. What is the role of general tests for determining when duties of care arise? Why did the courts end up
rejecting the neighbourhood principle?
, E.g. the bus driver is under a duty of care when people board the bus, doctors have a duty of care
in treating you etc. and this is a principle. There is NO CASE for this, but it is like a pre-existing
principle that the Lords used to prove a duty of care. Hence why this principle becomes the tort
of negligence.
THE NEIGHBOURHOOD PRINCIPLE
o Donoghue v Stevenson (Lord Atkin): ‘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 my
contemplation as being so affected when I am directing my mind to the acts or
omissions which are called into question’
o I.e. any foreseeable harm caused to someone you owe a duty to.
THE PRINCIPLE REVISED
o Neighbourhood Principle was scrapped because it was way too simplistic and did not
work with every case in which some cases are more problematic.
o Anns v Merton LBC (Lord Wilberforce):
o ‘First one has to ask whether, as between the alleged wrongdoer and the person who
has suffered damage there is a sufficient relationship of proximity or neighbourhood
such that, in the reasonable contemplation of the former, carelessness on his part may
be likely to cause damage to the latter—in which case a prima facie duty of care arises.
o Secondly, … it is necessary to consider whether there are any considerations which
ought to negative, or to reduce or limit the scope of the duty or the class of person to
whom it is owed or the damages to which a breach of it may give rise’ (i.e. some
considerations/arguments against the duty of care do exist)
Hill v Chief Const of S Yorks:
o D’s daughter KILLED by mass murderer. D sued the police in negligence but it was found
there is no duty of care because;
o It might lead police offers to act in a ‘detrimentally defensive’ manner,
o It would require the courts to evaluate decisions beyond their expertise and
competence,
o It would be a wasteful diversion of public funds and manpower. It is better the police do
not pay for damages.
o It is clear here the NP would not work here. It would end up for the worst in this case.
o This case does not care for DvS.
The retreat from Anns
o The 2nd stage of Anns directed courts to deny a duty of care if there are good arguments
against finding a duty of care, notwithstanding that harm was reasonably foreseeable.
Nonetheless, the feeling grew that the courts were beginning to find duties of care too
readily.
4. What are the two approaches/tests for identifying novel duties of care put forward in Caparo v Dickman?
Are they compatible? Are they satisfactory? How in fact do courts go about determining if a duty of care
is owed? All 3 of the stage 3 test must be completed for the courts to recognise a duty of care.
The Stage 3 Test:
i. Stage 1: foresight of damage in a duty of care
ii. Stage 2: a duty of care in proximity of the party
iii. Stage 3: fair and reasonableness in imposing a duty on one party for benefitting the
other.
READING:
* McBride and Bagshaw, pp 79-121, 142-152, 185-219
Donoghue v Stevenson [1932] AC 562 (HL)
Anns v Merton London Borough Council [1978] AC 728 (HL) at pp 751-752
* Caparo Industries plc v Dickman [1990] 2 AC 605 (HL)
The Nicholas H (Marc Rich & Co Ltd v Bishop Rock Marine Co Ltd) [1996} AC 211 (HL)
Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732
* Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736
FURTHER READING:
Robertson, ‘Justice, Community Welfare and the Duty of Care’ (2011) 127 LQR 370
Tofaris and Steel, ‘Negligence Liability for Omissions and the Police’ [2016] CLJ 128
QUESTIONS
1. What are the elements of the tort of negligence?
Duty
i. D owed C duty of care (i.e. duty to take reasonable care not to cause him a particular
type of injury).
Breach
i. D breached that duty of care.
Causation (and remoteness)
i. D’s breach of a duty was a cause of C’s injury
Defences
i. D has no defence to C’s claim
2. What was the significance of Donoghue v Stevenson?
Snail in the ginger beer. Donoghue who was drunk but did not buy the drink herself sues to manager,
Stevenson. Did Stevenson owe her a duty of care? YES! This was a difficult case to decide as there was
NO precedent.
Donoghue marks a break from the approach of the prior cases, by which duties of care arise only
where there is precedent on finding a duty on such facts.
“There must be, and is, some general conception of relations giving rise to a duty of care, of which the
particular cases found in the books are but instances”. – Lord Atkin
There was no similar case to apply to this case. The old approach of using precedent would mean
there is no duty of care so Donoghue’s argument that the duty of care shouldn’t be tied to precedent
is the one that the Lords accepted. The relevant principle is enough.
It also created the neighbour principle.
3. What is the role of general tests for determining when duties of care arise? Why did the courts end up
rejecting the neighbourhood principle?
, E.g. the bus driver is under a duty of care when people board the bus, doctors have a duty of care
in treating you etc. and this is a principle. There is NO CASE for this, but it is like a pre-existing
principle that the Lords used to prove a duty of care. Hence why this principle becomes the tort
of negligence.
THE NEIGHBOURHOOD PRINCIPLE
o Donoghue v Stevenson (Lord Atkin): ‘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 my
contemplation as being so affected when I am directing my mind to the acts or
omissions which are called into question’
o I.e. any foreseeable harm caused to someone you owe a duty to.
THE PRINCIPLE REVISED
o Neighbourhood Principle was scrapped because it was way too simplistic and did not
work with every case in which some cases are more problematic.
o Anns v Merton LBC (Lord Wilberforce):
o ‘First one has to ask whether, as between the alleged wrongdoer and the person who
has suffered damage there is a sufficient relationship of proximity or neighbourhood
such that, in the reasonable contemplation of the former, carelessness on his part may
be likely to cause damage to the latter—in which case a prima facie duty of care arises.
o Secondly, … it is necessary to consider whether there are any considerations which
ought to negative, or to reduce or limit the scope of the duty or the class of person to
whom it is owed or the damages to which a breach of it may give rise’ (i.e. some
considerations/arguments against the duty of care do exist)
Hill v Chief Const of S Yorks:
o D’s daughter KILLED by mass murderer. D sued the police in negligence but it was found
there is no duty of care because;
o It might lead police offers to act in a ‘detrimentally defensive’ manner,
o It would require the courts to evaluate decisions beyond their expertise and
competence,
o It would be a wasteful diversion of public funds and manpower. It is better the police do
not pay for damages.
o It is clear here the NP would not work here. It would end up for the worst in this case.
o This case does not care for DvS.
The retreat from Anns
o The 2nd stage of Anns directed courts to deny a duty of care if there are good arguments
against finding a duty of care, notwithstanding that harm was reasonably foreseeable.
Nonetheless, the feeling grew that the courts were beginning to find duties of care too
readily.
4. What are the two approaches/tests for identifying novel duties of care put forward in Caparo v Dickman?
Are they compatible? Are they satisfactory? How in fact do courts go about determining if a duty of care
is owed? All 3 of the stage 3 test must be completed for the courts to recognise a duty of care.
The Stage 3 Test:
i. Stage 1: foresight of damage in a duty of care
ii. Stage 2: a duty of care in proximity of the party
iii. Stage 3: fair and reasonableness in imposing a duty on one party for benefitting the
other.
