🤕
NEGLIGENCE: DUTY, BREACH,
CAUSATION & DEFENCE
STEP 1: State - the claimant can consider
suing the defendant for [insert harm in the
tort of NEGLIGENCE
Claimant v defendant [insert relevant names].
💡 Define negligence: a breach by the defendant of a legal duty of care owed
to the claimant that results in actionable damage to the claimant
unintended by the defendant.
For a negligence claim, run through the four elements: duty of care, breach,
causation, defences.
STEP 2: Consider whether the defendant
owes the claimant a legal DUTY OF CARE.
ESTABLISHED DUTY SITUATIONS.
Established duties of care exist in the following situation:
1. one road user to another (London Passenger Transport Board v Upson);
2. teacher to pupil;
3. doctor to patient;
4. manufacturer to the ultimate consumer of the product;
NEGLIGENCE: DUTY, BREACH, CAUSATION & DEFENCE 1
, 5. defendant to RESCUER, where the defendant has created a dangerous situation
so that it is reasonable that somebody may attempt rescue (Baker v Hopkins);
6. driver to pedestrians and passengers (Nettleship v Weston);
7. referee to sports player (Vowles v Evans);
8. parent/adult in loco parentis to child;
9. advocate to a client (Arthur J S Hall and Co. v Simons); and
10. in limited circumstances:
a. ambulance service to emergency callers (Kent v Griffiths).
b. soldier to colleagues (Mulcahy v Ministry of Defense);
c. fire service to the emergency caller (Capital & Counties v Hampshire
County Council).
NOVEL DUTY SITUATIONS
📌 When imposing a duty in general, the wide ratios from Donoghue v
Stevenson and Caparo should be considered.
1. Starting point – Donoghue v Stevenson wide rule (AKA the neighbour
principle).
💡 ‘You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour’.
2. Explain how Donoghue v Stevenson ratio was redefined in Caparo Industries
pic v Dickman and others and apply the three-part test for whether a duty of
care is owed. For extra points, note that the court has confirmed in Robinson v
Chief Constable of West Yorkshire Police that where the courts have already
determined that a duty exists it is unnecessary to assess whether it should exist
using the Caparo test. Caparo should be used as a framework to analyse
whether it is fair and reasonable that a duty comes into existence in law. It will
only be used where a novel situation arises and the law needs to develop (albeit
in line with existing authorities).
NEGLIGENCE: DUTY, BREACH, CAUSATION & DEFENCE 2
, The Caparo test is as follows:
a. Is it
REASONABLY FORESEEABLE that the defendant’s actions will
affect this particular claimant (Bourhill v Young)?
b. Is there sufficient
PROXIMITY OF RELATIONSHIP between the claimant and the
defendant? (Dorset Yacht)
c. Is it
FAIR, JUST AND REASONABLE to impose a duty? E.g. it may
not be fair if the defendant is a non-profit organisation/acting in a
quasi-public capacity (Marc Rich v Bishop Rock Marine Co
Ltd).
The relevance of the Caparo factors (reasonable foreseeability, proximity and
fairness, justice and reasonableness) lies in providing a framework of inquiry into
whether the law ought to take this incremental step. The duty will be imposed where
the harm to the claimant is foreseeable, the relationship between the claimant and
defendant is sufficiently proximate and it is fair just and reasonable to impose a duty.
Do the POLICE owe a duty of care?
💡 General rule – public policy driven: the police do NOT owe a duty of care
to individuals, only to the public at large (Hill v Chief Constable of West
Yorkshire: confirmed in Brooks v Commissioner of Police for the
Metropolis; Osman v UK; Smith v Chief Constable of Sussex Police).
However, in 2018 in Robinson v Chief Constable of West Yorkshire Police, the
Supreme Court held unanimously that Hill was a misinterpretation of the law and
there is no general rule that, in the prevention and the investigation of a crime, the
police are free from liability. The police owe a duty of care to avoid causing, by a
positive act, foreseeable personal injury to another person.
Exceptions:
where the police have assumed responsibility for someone or someone has
been entrusted to their care, the police owe a duty of care to that person
NEGLIGENCE: DUTY, BREACH, CAUSATION & DEFENCE 3
, (Kirkham v Chief Constable of Greater Manchester Police – suicidal prisoner,
taken into police custody).
In addition, the police may owe a duty of care:
to take action with reasonable care (Rigby v Chief Constable of
Northamptonshire Police).
to keep the ID of informants safe (Swinney v Chief Constable of Northumbria
Police).
However, the Commission of Police of the Metropolis v DSD and another (The
Worboys case) throw in doubt the established duty for police. A test case is needed
to fully interpret the decision.
👮🏻♂️ Police Liability - Duty of Care
Mock Exam Question Revision
Omissions: is there a duty to act positively?
💡 The general rule (Stovin v Wise): there is no liability for pure omissions,
and you do not owe a duty to the world for doing nothing to prevent harm.
This rule applies if you decide to act despite no duty to do so, even if you act
carelessly — UNLESS you make matters worse (East Suffolk Rivers Catchment
Board v Kent and another).
Exception - Home Office v Dorset Yacht: there is a duty to
act positively in cases where a person has a special
relationship of control over another (Smith v Littlewoods —
but this duty does not extend to cover actions of third parties
who are OUTSIDE the defendant’s control).
STEP 3: Consider where there has been a
BREACH of this duty of care - apply a two-
NEGLIGENCE: DUTY, BREACH, CAUSATION & DEFENCE 4
NEGLIGENCE: DUTY, BREACH,
CAUSATION & DEFENCE
STEP 1: State - the claimant can consider
suing the defendant for [insert harm in the
tort of NEGLIGENCE
Claimant v defendant [insert relevant names].
💡 Define negligence: a breach by the defendant of a legal duty of care owed
to the claimant that results in actionable damage to the claimant
unintended by the defendant.
For a negligence claim, run through the four elements: duty of care, breach,
causation, defences.
STEP 2: Consider whether the defendant
owes the claimant a legal DUTY OF CARE.
ESTABLISHED DUTY SITUATIONS.
Established duties of care exist in the following situation:
1. one road user to another (London Passenger Transport Board v Upson);
2. teacher to pupil;
3. doctor to patient;
4. manufacturer to the ultimate consumer of the product;
NEGLIGENCE: DUTY, BREACH, CAUSATION & DEFENCE 1
, 5. defendant to RESCUER, where the defendant has created a dangerous situation
so that it is reasonable that somebody may attempt rescue (Baker v Hopkins);
6. driver to pedestrians and passengers (Nettleship v Weston);
7. referee to sports player (Vowles v Evans);
8. parent/adult in loco parentis to child;
9. advocate to a client (Arthur J S Hall and Co. v Simons); and
10. in limited circumstances:
a. ambulance service to emergency callers (Kent v Griffiths).
b. soldier to colleagues (Mulcahy v Ministry of Defense);
c. fire service to the emergency caller (Capital & Counties v Hampshire
County Council).
NOVEL DUTY SITUATIONS
📌 When imposing a duty in general, the wide ratios from Donoghue v
Stevenson and Caparo should be considered.
1. Starting point – Donoghue v Stevenson wide rule (AKA the neighbour
principle).
💡 ‘You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour’.
2. Explain how Donoghue v Stevenson ratio was redefined in Caparo Industries
pic v Dickman and others and apply the three-part test for whether a duty of
care is owed. For extra points, note that the court has confirmed in Robinson v
Chief Constable of West Yorkshire Police that where the courts have already
determined that a duty exists it is unnecessary to assess whether it should exist
using the Caparo test. Caparo should be used as a framework to analyse
whether it is fair and reasonable that a duty comes into existence in law. It will
only be used where a novel situation arises and the law needs to develop (albeit
in line with existing authorities).
NEGLIGENCE: DUTY, BREACH, CAUSATION & DEFENCE 2
, The Caparo test is as follows:
a. Is it
REASONABLY FORESEEABLE that the defendant’s actions will
affect this particular claimant (Bourhill v Young)?
b. Is there sufficient
PROXIMITY OF RELATIONSHIP between the claimant and the
defendant? (Dorset Yacht)
c. Is it
FAIR, JUST AND REASONABLE to impose a duty? E.g. it may
not be fair if the defendant is a non-profit organisation/acting in a
quasi-public capacity (Marc Rich v Bishop Rock Marine Co
Ltd).
The relevance of the Caparo factors (reasonable foreseeability, proximity and
fairness, justice and reasonableness) lies in providing a framework of inquiry into
whether the law ought to take this incremental step. The duty will be imposed where
the harm to the claimant is foreseeable, the relationship between the claimant and
defendant is sufficiently proximate and it is fair just and reasonable to impose a duty.
Do the POLICE owe a duty of care?
💡 General rule – public policy driven: the police do NOT owe a duty of care
to individuals, only to the public at large (Hill v Chief Constable of West
Yorkshire: confirmed in Brooks v Commissioner of Police for the
Metropolis; Osman v UK; Smith v Chief Constable of Sussex Police).
However, in 2018 in Robinson v Chief Constable of West Yorkshire Police, the
Supreme Court held unanimously that Hill was a misinterpretation of the law and
there is no general rule that, in the prevention and the investigation of a crime, the
police are free from liability. The police owe a duty of care to avoid causing, by a
positive act, foreseeable personal injury to another person.
Exceptions:
where the police have assumed responsibility for someone or someone has
been entrusted to their care, the police owe a duty of care to that person
NEGLIGENCE: DUTY, BREACH, CAUSATION & DEFENCE 3
, (Kirkham v Chief Constable of Greater Manchester Police – suicidal prisoner,
taken into police custody).
In addition, the police may owe a duty of care:
to take action with reasonable care (Rigby v Chief Constable of
Northamptonshire Police).
to keep the ID of informants safe (Swinney v Chief Constable of Northumbria
Police).
However, the Commission of Police of the Metropolis v DSD and another (The
Worboys case) throw in doubt the established duty for police. A test case is needed
to fully interpret the decision.
👮🏻♂️ Police Liability - Duty of Care
Mock Exam Question Revision
Omissions: is there a duty to act positively?
💡 The general rule (Stovin v Wise): there is no liability for pure omissions,
and you do not owe a duty to the world for doing nothing to prevent harm.
This rule applies if you decide to act despite no duty to do so, even if you act
carelessly — UNLESS you make matters worse (East Suffolk Rivers Catchment
Board v Kent and another).
Exception - Home Office v Dorset Yacht: there is a duty to
act positively in cases where a person has a special
relationship of control over another (Smith v Littlewoods —
but this duty does not extend to cover actions of third parties
who are OUTSIDE the defendant’s control).
STEP 3: Consider where there has been a
BREACH of this duty of care - apply a two-
NEGLIGENCE: DUTY, BREACH, CAUSATION & DEFENCE 4
