‘If the concept of duty in the common law serves a useful purpose, this must be found in its
capacity to synthesise the numerous different criteria used by the courts to determine the
boundaries of negligence liability’ (Markesinis and Deakin’s Tort Law, 2012) . Discuss
Three elements:
1. Duty of Care
2. Breach of Duty
3. Causation of Damage
I.e. Must be a recognised duty of care which is breached and the breach causes legally recognised
loss
Some features of duty:
• Carelessness without legal relationship insufficient
• Duty defines legal relationship
• Duty controls loss distribution (could equally be said of negligence as a whole)
• Tree of Negligence (Harlow)
• Policy considerations
- Loss allocation – insurance? Public purse?
- Encourage care – e.g. Drivers, employers, professionals
- Consistency
- Role of Parliament vs judicial ‘legislation’
International comparisons:
• Many civil jurisdictions cope without ‘duty’
• France – general obligation to pay compensation if loss due to fault of another – causation is
the control mechanism
• Germany –compensation payable if any of a list of protected interests (including: life, body,
health, freedom and property) is infringed. See B. Markesinis and H. Unberath, The German
Law of Torts, 2002, Hart
• English law lacks a coherent, explicit set of protected interests as well as a clear
categorisation of ‘damage’ which is actionable (see Nolan, ‘New Forms of Damage in
Negligence’(2007) 70 MLR 59)
• Additional complexity is present due to a potentially unlimited set of policy factors
1) 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
• Strong element of judicial subjectivity
2) Anns 2 stage test
• Was the harm to the claimant foreseeable -bringing him/her within the ‘neighbour
principle’?
• Were there any policy reasons to deny the existence of a duty?
• The period prior to the mid-1980s, when Anns was followed, may be characterised by judges
focusing upon why a duty was to be found. The focus from the mid-1980s onwards may be
characterised by judges finding creative ways to find no duty. (See, for example, David
, Howarth, ‘Many duties of care - or a duty of care? Notes from the underground’, O.J.L.S.
2006, 26(3), 449-472)
3) Caparo
Three stage ‘test’:
Incremental approach
1. Foreseeability
- Foreseeability may be misleadingly viewed as a ‘mere’ exercise in factual inquiry
- Arguable that Lord Atkin didn’t intend the ‘neighbour principle’ to apply to all types of
foreseeable harm and that subsequent courts’ stretching and manipulation of the
concept hides unexpressed policy considerations (see further Smith and Burns,
‘Donoghue v Stevenson – The Not so Golden Anniversary’ (1983) 46 MLR 147)
2. Sufficiently proximate relationship between the parties
Is proximity meaningful?
- Lord Wilberforce in Anns seemed to treat proximity as synonymous with foreseeability,
Caparo makes the two distinct.
- BUT the nature of proximity remains elusive, e.g.:
- ‘Proximity is now the key word, though it doesn’t open many doors.’ (Weir, 1991, CLJ
24)
- ‘Proximity is a slippery word...another way of saying that when addressing the
requirements of fairness and reasonableness regard must be had to the relationship of
the parties.’ Lord Nicholls in Stovin v Wise [1996] AC 923 at 932
- Hickman (2002) CLJ 13 – proximity is not simply a categorisation of facts from which
conclusions can be drawn but is underpinned by policy considerations.
- Robertson also identifies proximity as being underpinned by policy, but the policy
issues are different to those considered in relation to the Caparo third ‘fair, just and
reasonable’ limb. Policy issues relevant to proximity focus upon issues of autonomy
and personal responsibility. (2011) 127 LQR 370.
- Some commentators argue that proximity does play an autonomous role and Absence of
‘proximity’ continues to be adopted as a convenient means for the judges to restrict the
scope of duty – esp. in the context of problematic areas such as omissions, economic
loss and psychiatric harm. E.g. Witting – proximity is a mechanism to identify those
persons most appropriately placed to take care to avoid harm to the claimant.
Determining proximity is a question of fact - see (2002) 118 LQR 214 and (2005) 25 OJLS
33.
3. Must be ‘just and reasonable’ to impose a duty
Alternative theoretical approaches:
Stevens, Torts and Rights, 2007, OUP:
• Duty of care (along with other private law duties) can only be correlative to a right possessed
by the claimant. E.g. A right to bodily safety leads to a duty on the part of a defendant to
take care not to infringe that right.
• Classification of damage therefore is relevant only to illustrating whether an underlying right
has been infringed.
capacity to synthesise the numerous different criteria used by the courts to determine the
boundaries of negligence liability’ (Markesinis and Deakin’s Tort Law, 2012) . Discuss
Three elements:
1. Duty of Care
2. Breach of Duty
3. Causation of Damage
I.e. Must be a recognised duty of care which is breached and the breach causes legally recognised
loss
Some features of duty:
• Carelessness without legal relationship insufficient
• Duty defines legal relationship
• Duty controls loss distribution (could equally be said of negligence as a whole)
• Tree of Negligence (Harlow)
• Policy considerations
- Loss allocation – insurance? Public purse?
- Encourage care – e.g. Drivers, employers, professionals
- Consistency
- Role of Parliament vs judicial ‘legislation’
International comparisons:
• Many civil jurisdictions cope without ‘duty’
• France – general obligation to pay compensation if loss due to fault of another – causation is
the control mechanism
• Germany –compensation payable if any of a list of protected interests (including: life, body,
health, freedom and property) is infringed. See B. Markesinis and H. Unberath, The German
Law of Torts, 2002, Hart
• English law lacks a coherent, explicit set of protected interests as well as a clear
categorisation of ‘damage’ which is actionable (see Nolan, ‘New Forms of Damage in
Negligence’(2007) 70 MLR 59)
• Additional complexity is present due to a potentially unlimited set of policy factors
1) 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
• Strong element of judicial subjectivity
2) Anns 2 stage test
• Was the harm to the claimant foreseeable -bringing him/her within the ‘neighbour
principle’?
• Were there any policy reasons to deny the existence of a duty?
• The period prior to the mid-1980s, when Anns was followed, may be characterised by judges
focusing upon why a duty was to be found. The focus from the mid-1980s onwards may be
characterised by judges finding creative ways to find no duty. (See, for example, David
, Howarth, ‘Many duties of care - or a duty of care? Notes from the underground’, O.J.L.S.
2006, 26(3), 449-472)
3) Caparo
Three stage ‘test’:
Incremental approach
1. Foreseeability
- Foreseeability may be misleadingly viewed as a ‘mere’ exercise in factual inquiry
- Arguable that Lord Atkin didn’t intend the ‘neighbour principle’ to apply to all types of
foreseeable harm and that subsequent courts’ stretching and manipulation of the
concept hides unexpressed policy considerations (see further Smith and Burns,
‘Donoghue v Stevenson – The Not so Golden Anniversary’ (1983) 46 MLR 147)
2. Sufficiently proximate relationship between the parties
Is proximity meaningful?
- Lord Wilberforce in Anns seemed to treat proximity as synonymous with foreseeability,
Caparo makes the two distinct.
- BUT the nature of proximity remains elusive, e.g.:
- ‘Proximity is now the key word, though it doesn’t open many doors.’ (Weir, 1991, CLJ
24)
- ‘Proximity is a slippery word...another way of saying that when addressing the
requirements of fairness and reasonableness regard must be had to the relationship of
the parties.’ Lord Nicholls in Stovin v Wise [1996] AC 923 at 932
- Hickman (2002) CLJ 13 – proximity is not simply a categorisation of facts from which
conclusions can be drawn but is underpinned by policy considerations.
- Robertson also identifies proximity as being underpinned by policy, but the policy
issues are different to those considered in relation to the Caparo third ‘fair, just and
reasonable’ limb. Policy issues relevant to proximity focus upon issues of autonomy
and personal responsibility. (2011) 127 LQR 370.
- Some commentators argue that proximity does play an autonomous role and Absence of
‘proximity’ continues to be adopted as a convenient means for the judges to restrict the
scope of duty – esp. in the context of problematic areas such as omissions, economic
loss and psychiatric harm. E.g. Witting – proximity is a mechanism to identify those
persons most appropriately placed to take care to avoid harm to the claimant.
Determining proximity is a question of fact - see (2002) 118 LQR 214 and (2005) 25 OJLS
33.
3. Must be ‘just and reasonable’ to impose a duty
Alternative theoretical approaches:
Stevens, Torts and Rights, 2007, OUP:
• Duty of care (along with other private law duties) can only be correlative to a right possessed
by the claimant. E.g. A right to bodily safety leads to a duty on the part of a defendant to
take care not to infringe that right.
• Classification of damage therefore is relevant only to illustrating whether an underlying right
has been infringed.
