1
Duty of care, assumption of
responsibility, breach of duty
Table of contents
Duty of care 1
Donoghue, approach to duty of care 1
Omissions liability 3
Acts of 3rd parties 4
Public bodies 4
Assumption of responsibility/Hedley Byrne 5
Economic loss Error! Bookmark not defined.
Wrongful life 11
Breach of duty 13
Pure economic loss 12
Duty of care
Key issues:
● Is assumption of responsibility a useful/meaningful concept?
● Is our current approach to duty of care correct?
● Should there be liability for pure economic loss, and if so, what should the test be?
Donoghue, approach to duty of care
Historically:
1. Early 19th Century: ‘on the facts’ negligence.
2. Donoghue gives the general test.
3. Whilst Donoghue generality was ahead of its time, this was adopted by Anns.
4. The retreat from Anns in Murphy.
5. Caparo restates the applicable principles (Lord Bridge clearly states that this is not a
‘test’).
6. Robinson pulls back from treatment of Caparo as a ‘test’ – as this is inconsistent with the
nature of the duty of care. It also abandons the Hill approach (informed by Anns) of
special rules for discrete subject-matter on policy reasoning.
NB the correct approach, outlined in Robinson, is:
● Established category: apply existing precedents
○ Analogise to a pre-existing case with similar/same facts
, 2
○ Certain categories e.g. omissions have special rules
● Novel situation: reason incrementally, by analogy with existing precedents
○ If no precedents, use Caparo guidelines (Robinson v CC West Yorkshire Police)
What are the established categories?
● Positive act causing physical injury to person
● Positive act causing property damage
● Psychiatric injury (see below for special rules)
● Omissions (see below for special rules)
● Pure economic loss (see below for special rules)
Commentary
- Stapleton: Donoghue’s importance is significant not just because it produces 1 test, but
because it comes up with 4 principles:
- 1. Claimant does not have to show he comes within a ‘pocket’ of
recognised factual scenarios
- 2. Claimant is not preclude from claim where the negligent conduct was
based on contractual obligations to a 3rd party
- 3. Foreseeability of some type is required
- 4. The ‘neighbour’ notation shows that foreseeability is necessary, but not
sufficient
- The first 2 principles open up/expand the field of negligence
- The 3rd principle is a barrier requirement to exclude carelessness
- The 4th principle isn't about proximity, because proximity itself is meaningless
- Me: what is interesting in Donoghue is Lord MacMillan’s real focus on protecting
the consumer - a very specific concern (and possibly one that cannot be extrapolated
to other fact patterns)?
- Me: negligence is unique because it doesn't really protect one right (the ‘right to be free
from negligence’)
- It protects against a vast array of rights, e.g. right to bodily integrity, property
rights
- So what is relevant is not the RIGHT in question, but the WRONG, i.e. the
defendant's behavior
- It’s about making people behave better, and sanctioning when they behave in a
way that’s not in society’s best interests
- Weinrib: the duty of care is about corrective justice
- Tort is founded on corrective justice - this requires correlativity, i.e. the injustice
done by the defendant must be equal to the injustice suffered by the
claimant
- The duty of care is the measure of correlativity - it has 2 elements:
- The interest protected by the DOC must be a right
- Stevens: but Weinrib fails to explain what rights we have!
- The duty breached must be correlative to the right
- The right both grounds and limits defendant liability
Duty of care, assumption of
responsibility, breach of duty
Table of contents
Duty of care 1
Donoghue, approach to duty of care 1
Omissions liability 3
Acts of 3rd parties 4
Public bodies 4
Assumption of responsibility/Hedley Byrne 5
Economic loss Error! Bookmark not defined.
Wrongful life 11
Breach of duty 13
Pure economic loss 12
Duty of care
Key issues:
● Is assumption of responsibility a useful/meaningful concept?
● Is our current approach to duty of care correct?
● Should there be liability for pure economic loss, and if so, what should the test be?
Donoghue, approach to duty of care
Historically:
1. Early 19th Century: ‘on the facts’ negligence.
2. Donoghue gives the general test.
3. Whilst Donoghue generality was ahead of its time, this was adopted by Anns.
4. The retreat from Anns in Murphy.
5. Caparo restates the applicable principles (Lord Bridge clearly states that this is not a
‘test’).
6. Robinson pulls back from treatment of Caparo as a ‘test’ – as this is inconsistent with the
nature of the duty of care. It also abandons the Hill approach (informed by Anns) of
special rules for discrete subject-matter on policy reasoning.
NB the correct approach, outlined in Robinson, is:
● Established category: apply existing precedents
○ Analogise to a pre-existing case with similar/same facts
, 2
○ Certain categories e.g. omissions have special rules
● Novel situation: reason incrementally, by analogy with existing precedents
○ If no precedents, use Caparo guidelines (Robinson v CC West Yorkshire Police)
What are the established categories?
● Positive act causing physical injury to person
● Positive act causing property damage
● Psychiatric injury (see below for special rules)
● Omissions (see below for special rules)
● Pure economic loss (see below for special rules)
Commentary
- Stapleton: Donoghue’s importance is significant not just because it produces 1 test, but
because it comes up with 4 principles:
- 1. Claimant does not have to show he comes within a ‘pocket’ of
recognised factual scenarios
- 2. Claimant is not preclude from claim where the negligent conduct was
based on contractual obligations to a 3rd party
- 3. Foreseeability of some type is required
- 4. The ‘neighbour’ notation shows that foreseeability is necessary, but not
sufficient
- The first 2 principles open up/expand the field of negligence
- The 3rd principle is a barrier requirement to exclude carelessness
- The 4th principle isn't about proximity, because proximity itself is meaningless
- Me: what is interesting in Donoghue is Lord MacMillan’s real focus on protecting
the consumer - a very specific concern (and possibly one that cannot be extrapolated
to other fact patterns)?
- Me: negligence is unique because it doesn't really protect one right (the ‘right to be free
from negligence’)
- It protects against a vast array of rights, e.g. right to bodily integrity, property
rights
- So what is relevant is not the RIGHT in question, but the WRONG, i.e. the
defendant's behavior
- It’s about making people behave better, and sanctioning when they behave in a
way that’s not in society’s best interests
- Weinrib: the duty of care is about corrective justice
- Tort is founded on corrective justice - this requires correlativity, i.e. the injustice
done by the defendant must be equal to the injustice suffered by the
claimant
- The duty of care is the measure of correlativity - it has 2 elements:
- The interest protected by the DOC must be a right
- Stevens: but Weinrib fails to explain what rights we have!
- The duty breached must be correlative to the right
- The right both grounds and limits defendant liability
