Duty of care on the police AND Caparo test novel duty - Exam Essay Structure
Explain the test which is applied in the tort of negligence to determine whether or not a duty of care is
owed in a novel situation. Critically evaluate if it is sufficiently flexible to allow fair and just outcomes to
be achieved.
Introduction
● In the tort of Negligence there are established situations where a duty will be owed to the
victim. Established duty situations include one road user to another, teacher to pupil, driver to
pedestrians and passengers (Nettleship v Weston), doctor to patient etc. Donoghue v Stevenson
established the neighbour principale whic was the test laid down to consider whether a duty
should be owed in any given novel situation. Principle established that you must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour. Test was reforulated in Caparo Industries v Dickman.
Main body - explanation of the Caparo test
● It is necessary to apply the Caparo test if there is no existing established duty. The Caparo test
redefined the neighbour principle in Donoghue v Stevenson. The court in Caparo said ‘the law
should develop novel categories of negligence incrementally and by analogy with established
categories.’
Three elements:
● Forseability: The C must be a foreseeable victim. I.e must be reasomably foreseeable that the Ds
actions will affect this particular C. Bourhill v Young is an example of a situation where the C was
not a foreseeable victim so no duty owed: The C saw blood on the roadway and claimed she
suffered shock and a miscarriage as a result. Although note: this decision predates Caparo.
● Proximity: Sufficient proximity of relationship between the claimant and defendant. Caparo itself
is an example of a case in which there was not sufficient proximity between the company and
the auditors so no duty owed.
● That it is fair, just and reasonable to impose a duty. For example in Marc Rich v Bishop Rock
Marine the D was a non-profit organisation operating for the sole purpose of promoting the
safety of lives and ships at sea.
● This aspect allows the court to take into account a range of policy factors. These include:
● The ‘floodgates’ argument. This is the argument that allowing a duty of care in a given situation
will enable large numbers of similar claims to follow. So could be an argument against imposing a
duty
● Deterrrence: imposition of a duty of care on a D may deter other Ds in the same situation from
acting carelessly. The benefit to the public from such increased safety also relevant.
● Resources and insurance: This factor may be an argumet for or against imposition of duty. Eg if D
is likely to be insured the imposition of a duty may help to ensure C is compensated without
placing an undue burden on the D. On the other hand extension of duties may increase the
burden on insurers. Likely to result in increased premiums.
Explain the test which is applied in the tort of negligence to determine whether or not a duty of care is
owed in a novel situation. Critically evaluate if it is sufficiently flexible to allow fair and just outcomes to
be achieved.
Introduction
● In the tort of Negligence there are established situations where a duty will be owed to the
victim. Established duty situations include one road user to another, teacher to pupil, driver to
pedestrians and passengers (Nettleship v Weston), doctor to patient etc. Donoghue v Stevenson
established the neighbour principale whic was the test laid down to consider whether a duty
should be owed in any given novel situation. Principle established that you must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour. Test was reforulated in Caparo Industries v Dickman.
Main body - explanation of the Caparo test
● It is necessary to apply the Caparo test if there is no existing established duty. The Caparo test
redefined the neighbour principle in Donoghue v Stevenson. The court in Caparo said ‘the law
should develop novel categories of negligence incrementally and by analogy with established
categories.’
Three elements:
● Forseability: The C must be a foreseeable victim. I.e must be reasomably foreseeable that the Ds
actions will affect this particular C. Bourhill v Young is an example of a situation where the C was
not a foreseeable victim so no duty owed: The C saw blood on the roadway and claimed she
suffered shock and a miscarriage as a result. Although note: this decision predates Caparo.
● Proximity: Sufficient proximity of relationship between the claimant and defendant. Caparo itself
is an example of a case in which there was not sufficient proximity between the company and
the auditors so no duty owed.
● That it is fair, just and reasonable to impose a duty. For example in Marc Rich v Bishop Rock
Marine the D was a non-profit organisation operating for the sole purpose of promoting the
safety of lives and ships at sea.
● This aspect allows the court to take into account a range of policy factors. These include:
● The ‘floodgates’ argument. This is the argument that allowing a duty of care in a given situation
will enable large numbers of similar claims to follow. So could be an argument against imposing a
duty
● Deterrrence: imposition of a duty of care on a D may deter other Ds in the same situation from
acting carelessly. The benefit to the public from such increased safety also relevant.
● Resources and insurance: This factor may be an argumet for or against imposition of duty. Eg if D
is likely to be insured the imposition of a duty may help to ensure C is compensated without
placing an undue burden on the D. On the other hand extension of duties may increase the
burden on insurers. Likely to result in increased premiums.
