1.ESTABLISHING A DUTY OF
CARE
STEP 1: IS THIS AN ESTABLISHED DUTY SITUATION?
Is this one of the common relationships where duty has already been clearly recognised?
Reflects Lord Reed’s clarification in Robinson that most DoC cases should be resolved by
reference to precedent. He emphasised: ‘The proposition that there is a Caparo test
which applies to all claims in the modern law of negligence… is mistaken’
- Manufacturer -> Consumer (Donoghue v Stevenson)
o Lord Atkin introduced neighbour principle, stating: ‘you must take
reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour’
o This principle established that manufacturers owe DoC to consumers, even
w/o direct contractual relationship
- Road users to each other (Nettleship v Weston 1971)
- Doctor -> Patient (Bolam v Friern Hospital Management Committee 1957)
- Employer -> Employee (Wilson & Clyde Coal Co Ltd v English 1938)
- Police causing positive physical harm (Robinson v Chief Constable of West
Yorkshire Police 2018)
o Robinson v Chief Constable of Wets Yorkshire Police [2018], Lord Reed
emphasised that: ‘the law should develop incrementally and by analogy
with established authority’
o Case clarified that police could owe DoC when their positive actions cause
foreseeable harm
- Solicitor -> Client (White v Jones 1995)
- Rescuer -> Person in danger (Barrett v Ministry of Defence 1995)
o Once person voluntarily assumes responsibility for another’s safety, they
owe a duty to act reasonably
- Local Authority -> Residents (building inspections) (Anns v Merton London
Borough Council 1978, but overruled by Murphy v Brentwood DC 1991)
- Teacher/School -> Student (Bradford-Smart v West Sussex County Council 2002)
If YES : Duty of Care exists. Skip Caparo
If NO or Unclear: Go to Step 2
How to write it in an exam:
When the duty is established: This case falls within an established duty of care
relationship, and therefore it is unnecessary to apply the Caparo framework. As
confirmed by Lord Reed in Robinson v Chief Constable of West Yorkshire [2018], “The
proposition that there is a Caparo test which applies to all claims in the modern law of
negligence… is mistaken.”The courts instead resolve most duty questions by reference to
existing categories of precedent. In this case, the relationship between [insert D and C]
aligns with the duty recognised in [insert key case]. For example, in Donoghue v
Stevenson [1932], Lord Atkin set out the foundational principle: “You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour.” Therefore, as this situation falls squarely within a
,recognised duty category, a duty of care exists, and there is no need to apply the Caparo
test or consider policy arguments.
When duty is not clearly established: This case does not clearly fall within a
recognised category of duty and thus requires further analysis. As per Lord Reed in
Robinson, where no established duty applies, the court should next consider whether the
case is analogous to existing precedent (Step 2), before applying Caparo (Step 3).
—————————————————————————————————————————————
————
STEP 2: IS THE CASE ANALOGOUS TO EXISTING PRECEDENT?
(INCREMENTAL APPROACH)
If the case doesn’t fall squarely within an established category, courts apply the
incremental approach. Lord Bridge in Caparo said: ‘the law should develop novel
categories of negligence incrementally and by analogy with established categories’.
Meaning your job is to find the closest factual and relational analogy in prior cases
Is there a previous case similar enough to guide the decision?
- Use incremental reasoning from Robinson : build on decided cases
- Darnley v Croydon Health Services NHS Trust [2018]: Receptionist duty = part of
established hospital patient duty
o Lord Lloyd Jones said : ‘it is an established principle that a DoC is owed by
those who provide and run a casualty department… [which’ extends to
giving accurate information’
o This reflects a logical extension of existing duty categories, not a novel
imposition
If YES : Rely on analogy. Duty likely.
If NO : Truly novel cases -> Apply Caparo (Step 3)
How to write it in an exam :
This case does not fall squarely within an established duty category (e.g. doctor-patient,
manufacturer-consumer). However, applying the incremental approach set out in
Robinson, the court will consider whether the facts are sufficiently analogous to an
existing duty situation. As Lord Bridge explained in Caparo, “the law should develop
novel categories of negligence incrementally and by analogy with established
categories.” Here, [insert relevant comparison]: e.g. the relationship between [D] and [C]
may be compared to [X], where a duty of care was recognised in [case]. The facts are
similar in that [explain key similarity — nature of interaction, reliance, foreseeability, role
responsibility]. Therefore, this case may be better understood as an extension of existing
precedent rather than a wholly novel situation. As in Darnley, the court may treat the
duty as already established, and therefore Caparo analysis would be unnecessary.
STEP 3: APPLY CAPARO FRAMEWORK (ONLY NOVEL CASES)
Only use this as a fallback where no precedent or analogy applies
1. Foreseeability
o Could D reasonably foreseen harm to C? Lord Atkin’s neighbour principle
(Donaghue, Haley v LEB)
, Lord Atkin introduced neighbour principle, stating: ‘you must take
reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour’
But remember, foreseeability alone isn’t enough. As Jackson LJ
warned in Darnley: ‘foreseeability alone is not sufficient to give rise
to a duty of care’
Smart move: contrast foreseeability with the need for proximity –
they are distinct hurdle
o E.g. was it foreseeable that C might be physically injured by D’s actions
2. Proximity
o Is there a sufficiently close legal relationship?
o Not just physical, its about interaction/responsibility
Lord Toulson in Michael [2015]: ‘Proximity is no more than a label…
not a yardstick’
Use this when arguing proximity: ‘while proximity can be elusive,
here the interaction between D and C arguably creates a relational
closeness sufficient to satisfy this limb’
o Michal v CC South Wales: no proximity in a 999-call context
Lord Toulon noted ‘the common law does not generally impose
liability for pure omissions’
This case reaffirmed the limitations on imposing DoC for failures to
act, especially concerning public authorities
3. Fair, just and reasonable
o Consider policy factors (e.g. avoiding floodgates, preserving public
services)
o In Hill, Lord Keith cautioned: ‘the imposition of liability may lead to policing
in a detrimentally defensive frame of mind’
You can argue that recognising a duty here may risk a chilling effect
on [public bodies/service providers] as feared in Hill
o OR flip It:
In dissent, Lord Kerr in Michael, argued that law should evolve with
social needs: ‘the idea that omissions should escape liability in all,
but exceptional cases may no monger reflect contemporary
expectations’
If all 3 are YES: Duty is established
How to write it in an exam:
As this case does not fall within an established duty category (Step 1), nor is it clearly
analogous to existing precedent (Step 2), the court must determine whether a duty of
care should be recognised by applying the three-stage test from Caparo Industries v
Dickman [1990].As Lord Bridge explained, the imposition of a duty depends on three
elements:
1. Foreseeability of harm
2. A relationship of proximity
3. Whether it is fair, just and reasonable to impose a duty
However, as clarified in Robinson v Chief Constable of West Yorkshire [2018], the Caparo
framework is not a universal test, but a fallback used when precedent offers no answer.
CARE
STEP 1: IS THIS AN ESTABLISHED DUTY SITUATION?
Is this one of the common relationships where duty has already been clearly recognised?
Reflects Lord Reed’s clarification in Robinson that most DoC cases should be resolved by
reference to precedent. He emphasised: ‘The proposition that there is a Caparo test
which applies to all claims in the modern law of negligence… is mistaken’
- Manufacturer -> Consumer (Donoghue v Stevenson)
o Lord Atkin introduced neighbour principle, stating: ‘you must take
reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour’
o This principle established that manufacturers owe DoC to consumers, even
w/o direct contractual relationship
- Road users to each other (Nettleship v Weston 1971)
- Doctor -> Patient (Bolam v Friern Hospital Management Committee 1957)
- Employer -> Employee (Wilson & Clyde Coal Co Ltd v English 1938)
- Police causing positive physical harm (Robinson v Chief Constable of West
Yorkshire Police 2018)
o Robinson v Chief Constable of Wets Yorkshire Police [2018], Lord Reed
emphasised that: ‘the law should develop incrementally and by analogy
with established authority’
o Case clarified that police could owe DoC when their positive actions cause
foreseeable harm
- Solicitor -> Client (White v Jones 1995)
- Rescuer -> Person in danger (Barrett v Ministry of Defence 1995)
o Once person voluntarily assumes responsibility for another’s safety, they
owe a duty to act reasonably
- Local Authority -> Residents (building inspections) (Anns v Merton London
Borough Council 1978, but overruled by Murphy v Brentwood DC 1991)
- Teacher/School -> Student (Bradford-Smart v West Sussex County Council 2002)
If YES : Duty of Care exists. Skip Caparo
If NO or Unclear: Go to Step 2
How to write it in an exam:
When the duty is established: This case falls within an established duty of care
relationship, and therefore it is unnecessary to apply the Caparo framework. As
confirmed by Lord Reed in Robinson v Chief Constable of West Yorkshire [2018], “The
proposition that there is a Caparo test which applies to all claims in the modern law of
negligence… is mistaken.”The courts instead resolve most duty questions by reference to
existing categories of precedent. In this case, the relationship between [insert D and C]
aligns with the duty recognised in [insert key case]. For example, in Donoghue v
Stevenson [1932], Lord Atkin set out the foundational principle: “You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour.” Therefore, as this situation falls squarely within a
,recognised duty category, a duty of care exists, and there is no need to apply the Caparo
test or consider policy arguments.
When duty is not clearly established: This case does not clearly fall within a
recognised category of duty and thus requires further analysis. As per Lord Reed in
Robinson, where no established duty applies, the court should next consider whether the
case is analogous to existing precedent (Step 2), before applying Caparo (Step 3).
—————————————————————————————————————————————
————
STEP 2: IS THE CASE ANALOGOUS TO EXISTING PRECEDENT?
(INCREMENTAL APPROACH)
If the case doesn’t fall squarely within an established category, courts apply the
incremental approach. Lord Bridge in Caparo said: ‘the law should develop novel
categories of negligence incrementally and by analogy with established categories’.
Meaning your job is to find the closest factual and relational analogy in prior cases
Is there a previous case similar enough to guide the decision?
- Use incremental reasoning from Robinson : build on decided cases
- Darnley v Croydon Health Services NHS Trust [2018]: Receptionist duty = part of
established hospital patient duty
o Lord Lloyd Jones said : ‘it is an established principle that a DoC is owed by
those who provide and run a casualty department… [which’ extends to
giving accurate information’
o This reflects a logical extension of existing duty categories, not a novel
imposition
If YES : Rely on analogy. Duty likely.
If NO : Truly novel cases -> Apply Caparo (Step 3)
How to write it in an exam :
This case does not fall squarely within an established duty category (e.g. doctor-patient,
manufacturer-consumer). However, applying the incremental approach set out in
Robinson, the court will consider whether the facts are sufficiently analogous to an
existing duty situation. As Lord Bridge explained in Caparo, “the law should develop
novel categories of negligence incrementally and by analogy with established
categories.” Here, [insert relevant comparison]: e.g. the relationship between [D] and [C]
may be compared to [X], where a duty of care was recognised in [case]. The facts are
similar in that [explain key similarity — nature of interaction, reliance, foreseeability, role
responsibility]. Therefore, this case may be better understood as an extension of existing
precedent rather than a wholly novel situation. As in Darnley, the court may treat the
duty as already established, and therefore Caparo analysis would be unnecessary.
STEP 3: APPLY CAPARO FRAMEWORK (ONLY NOVEL CASES)
Only use this as a fallback where no precedent or analogy applies
1. Foreseeability
o Could D reasonably foreseen harm to C? Lord Atkin’s neighbour principle
(Donaghue, Haley v LEB)
, Lord Atkin introduced neighbour principle, stating: ‘you must take
reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour’
But remember, foreseeability alone isn’t enough. As Jackson LJ
warned in Darnley: ‘foreseeability alone is not sufficient to give rise
to a duty of care’
Smart move: contrast foreseeability with the need for proximity –
they are distinct hurdle
o E.g. was it foreseeable that C might be physically injured by D’s actions
2. Proximity
o Is there a sufficiently close legal relationship?
o Not just physical, its about interaction/responsibility
Lord Toulson in Michael [2015]: ‘Proximity is no more than a label…
not a yardstick’
Use this when arguing proximity: ‘while proximity can be elusive,
here the interaction between D and C arguably creates a relational
closeness sufficient to satisfy this limb’
o Michal v CC South Wales: no proximity in a 999-call context
Lord Toulon noted ‘the common law does not generally impose
liability for pure omissions’
This case reaffirmed the limitations on imposing DoC for failures to
act, especially concerning public authorities
3. Fair, just and reasonable
o Consider policy factors (e.g. avoiding floodgates, preserving public
services)
o In Hill, Lord Keith cautioned: ‘the imposition of liability may lead to policing
in a detrimentally defensive frame of mind’
You can argue that recognising a duty here may risk a chilling effect
on [public bodies/service providers] as feared in Hill
o OR flip It:
In dissent, Lord Kerr in Michael, argued that law should evolve with
social needs: ‘the idea that omissions should escape liability in all,
but exceptional cases may no monger reflect contemporary
expectations’
If all 3 are YES: Duty is established
How to write it in an exam:
As this case does not fall within an established duty category (Step 1), nor is it clearly
analogous to existing precedent (Step 2), the court must determine whether a duty of
care should be recognised by applying the three-stage test from Caparo Industries v
Dickman [1990].As Lord Bridge explained, the imposition of a duty depends on three
elements:
1. Foreseeability of harm
2. A relationship of proximity
3. Whether it is fair, just and reasonable to impose a duty
However, as clarified in Robinson v Chief Constable of West Yorkshire [2018], the Caparo
framework is not a universal test, but a fallback used when precedent offers no answer.
