Duty of care

Question 1

What is the significance of the ‘neighbour principle’ in determining a duty of care?

Answer 1

The ‘neighbour principle’ is a concept developed in the case of Donoghue v Stevenson. It states that individuals must take reasonable care to avoid acts or omissions that could reasonably foreseeably injure their ‘neighbours’. The principle considers the concepts of foreseeability and proximity when determining if a duty of care should be imposed.

Question 2

What is the three-stage approach used to establish a duty of care?

Answer 2

The three-stage approach involves: 1) Foreseeability of harm - it must be reasonably foreseeable that the defendant’s lack of care would cause harm to the claimant. 2) Proximity - there must be a relationship of sufficient closeness between the claimant and defendant. 3) Fairness, justice, and reasonableness - it must be fair, just, and reasonable to impose a duty of care.

Question 3

What policy considerations can influence the scope of claims in relation to duty of care?

Answer 3

Policy considerations such as floodgates, insurance, crushing liability, deterrence, maintenance of high standards, and defensive practices can influence the scope of claims in relation to duty of care. These considerations can narrow or broaden the scope of claims depending on the prevailing legal climate.

Question 4

How does the court exercise judgment when deciding whether to recognize a duty of care in a novel type of case?

Answer 4

When deciding whether to recognize a duty of care in a novel type of case, the court exercises judgment based on what is fair, just, and reasonable. This involves considering the impact of the decision socially, politically, and economically on society as a whole.

Question 5

What is the role of analogy with established authority in determining a duty of care?

Answer 5

Analogy with established authority involves drawing comparisons between the legally significant features of earlier cases and the novel case at hand. This helps in determining whether a duty of care should be recognized. Proximity, as seen in previous cases, remains an important factor in establishing duty.

Question 6

When is it necessary to establish a duty of care with no clear precedent?

Answer 6

It is necessary to establish a duty of care with no clear precedent in novel types of cases where there is no established duty. In such cases, the courts need to decide whether a duty of care should be recognized by using the three-stage approach and developing the scope of duty incrementally, based on analogy with established authorities.

Question 7

What are the key considerations when ascertaining if a duty of care is owed?

Answer 7

When ascertaining if a duty of care is owed, key considerations include existing authorities that have already established a duty of care in the situation being considered. If there is no such precedent, drawing analogies with existing cases and ensuring harm is objectively reasonably foreseeable are important.

Question 8

What is the general rule regarding liability for omissions?

Answer 8

The general rule is that the law of tort only imposes liability on those who cause injury or damage to another. No duty is imposed on a mere failure to act, otherwise known as an omission.

Question 9

What are some exceptions to the general rule of liability for omissions?

Answer 9

Some exceptions to the general rule include situations where there is a statutory duty, a contractual duty, the defendant has sufficient control over the claimant, the defendant assumes responsibility for the claimant’s welfare, or the defendant creates the risk through an omission.

There is a duty to act positively in tort if a person has some sort of power or control over the
other person or object. This special relationship of control could arise in several different
ways, eg:
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employer and employee;
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schools and children;
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parents and children;
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instructors and pupils.

Question 10

What factors should be considered when determining if a duty of care should be imposed in relation to an omission?

Answer 10

When determining if a duty of care should be imposed in relation to an omission, factors such as foreseeability of harm, proximity between the parties, and whether imposing a duty would be fair, just, and reasonable should be considered. Existing authorities and analogies with existing cases can also be helpful in making this determination.

Question 11

What duty of care do emergency services owe in relation to omissions?

Answer 11

The ambulance service, which is regarded as part of the health service, owes a duty of care to respond to a 999 call within a reasonable time

Question 12

Under what circumstances does the fire brigade owe a duty of care?

Answer 12

The fire brigade owes no duty of care to attend a fire, but if they do attend a fire, they owe a duty not to make the situation worse through a positive act.

Question 13

Does the police owe a duty of care to respond to emergency calls?

Answer 13

The police owe no duty of care to respond to emergency calls. However, they can owe a duty in other circumstances.

Question 14

What factors should be considered when determining if a duty of care is owed?

Answer 14

When determining if a duty of care is owed, factors such as precedents, foreseeability, ‘proximity’, and what would be fair, just, and reasonable should be considered. The relationship between the claimant and the defendant (the proximity) is also important.

Question 15

What is the general rule in relation to acts of third parties and duty of care?

Answer 15

As a general rule, the law of tort only imposes liability on those who directly cause injury or damage to another. No duty is imposed on a failure to prevent a third party from causing harm to another. However, there are exceptions to this general rule where a positive duty to act to prevent harm by a third party may be imposed.

Question 16

What are the exceptions to the general rule regarding acts of third parties and duty of care?

Answer 16

The exceptions to the general rule include situations where there is sufficient proximity between the defendant and claimant or between the defendant and third party, where the defendant created the danger, or where the risk was on the defendant’s premises. These exceptions may impose a duty to act to prevent harm caused by a third party.

Question 17

How can a duty of care be established in cases involving acts of third parties?

Answer 17

When ascertaining if a duty of care is owed, one should consider whether there is any precedent that has already established a duty of care in the situation being considered. If not, one should consider whether a duty should be imposed by drawing analogies with existing cases and applying the Caparo three-stage test of foreseeability, proximity, and fair just and reasonableness.

Question 18

What is the significance of proximity in cases involving acts of third parties?

Answer 18

Proximity plays a prominent role in determining whether a duty of care should be imposed in cases involving acts of third parties. It involves examining the relationship between the claimant and the defendant, as well as the proximity between the defendant and the third party. Proximity is an important consideration when establishing a duty of care.

Question 19

What are the four categories in which the exceptions to the general rule regarding acts of third parties can be categorized?

Answer 19

The exceptions to the general rule can be categorized into four categories: (1) Sufficient proximity between the defendant and claimant, (2) Sufficient proximity between the defendant and third party, (3) The defendant created the danger, and (4) The risk was on the defendant’s premises.

Question 20

How can existing cases be used as precedent in establishing a duty of care in cases involving acts of third parties?

Answer 20

Existing cases can be used as precedent in establishing a duty of care if the facts of the case being considered are the same or very similar to the precedent cases. By drawing analogies with existing cases and applying the Caparo three-stage test, a duty of care can be established incrementally.

Question 21

What are the circumstances in which party A can be held to owe a duty to party B in relation to harm caused by a third party?

Answer 21

The circumstances in which party A can be held to owe a duty to party B in relation to harm caused by a third party include: (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.

Question 22

How can a duty of care be imposed based on the finding of proximity?

Answer 22

In many cases, a duty of care is imposed based on the finding of proximity between the defendant and the claimant or third party. This finding of proximity can be based on an assumption of responsibility.

Question 23

What factors should be considered when determining if a duty of care is owed?

Answer 23

When determining if a duty of care is owed, factors such as precedents, foreseeability, ‘proximity’, and what would be fair, just, and reasonable should be considered. The relationship between the claimant and the defendant (the proximity) and the defendant and third-party are also important.

Question 24

What should be done when there is no precedent to determine if a duty of care is owed?

Answer 24

When there is no precedent, one should consider whether a duty should be imposed by drawing analogies with existing cases. Factors such as foreseeability, ‘proximity’, and what would be fair, just, and reasonable should be taken into account during this process.

Question 25

The police are transporting two dangerous criminals in a police van to be interviewed about a recent murder. The criminals escape from the van and seriously injure a passer-by in the process.

Which of the following statements is most accurate in relation to whether a duty of care is owed by the police to the passer-by?

A It is likely a duty of care would be owed. The criminals were under the care and control of the police at the time the passer-by was injured, and the passer-by was an identifiable member of a small group at risk over and above the public at large.

B It is likely a duty of care would be owed. The criminals were under the care and control of the police at the time the passer-by was injured, and the police assume responsibility for the safety of the public.

C It is unlikely a duty of care would be owed. The criminals were not under the care and control of the police at the time the passer-by was injured, and the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group.

D It is unlikely a duty of care would be owed. Whilst the criminals were under the care and control of the police at the time the passer-by was injured, the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group

Answer 25

DIt is unlikely a duty of care would be owed. Whilst the criminals were under the care and control of the police at the time the passer-by was injured, the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group.

Correct. There appears to be sufficient proximity between the police (defendant) and criminals (third party) but not between the police (defendant) and passer-by (claimant).

Question 26

What are the complicating factors in ascertaining whether public bodies owe a duty of care?

Answer 26

The complicating factors in ascertaining whether public bodies owe a duty of care are: a) Many public bodies derive their powers or duties from statutes, which can impact the court’s findings in relation to duty. b) When deciding whether to develop the law of negligence into a new area, the court must consider what is fair, just, and reasonable, taking into account policy considerations. Public bodies often present different concerns in this regard compared to individuals.

Question 27

What is the relevance of powers or duties derived from statutes in determining the liability of public bodies?

Answer 27

When looking at positive acts and omissions, the liability of a public authority is in principle the same as that of a private person, but may be restricted by statutory powers or duties. An act that would normally be considered a breach of duty cannot be if it is specifically authorized by an Act of Parliament. This principle upholds the principle of parliamentary sovereignty.

Question 28

What are some policy considerations when imposing a duty of care on public bodies?

Answer 28

Some policy considerations when imposing a duty of care on public bodies include: a) The fact that damages paid in successful claims against public bodies are often ultimately borne by taxpayers, which might discourage finding a duty of care in new cases. b) The imposition of a duty might lead to restricted operation of public services due to fear of litigation (referred to as ‘defensive practices’). An example is the concern that police adopting defensive practices may result in a waste of resources and inefficient use of manpower.

Question 29

What are some examples of duties imposed on public bodies?

Answer 29

Some examples of duties imposed on public bodies include: a) In Phelps v Hillingdon London Borough, a local authority was held to owe a duty of care to provide education appropriate to a child’s needs after misdiagnosing the child’s dyslexia. b) In Jebson v Ministry of Defence, a camp commander was found to owe a duty of care to ensure the safety of a drunk soldier returning from a night out organized by the commander.

Question 30

What is the significance of the Mulcahy v Ministry of Defence case in relation to soldiers in battle conditions?

Answer 30

The Mulcahy v Ministry of Defence case established that the army does not owe a duty to soldiers in battle conditions during active combat.

Question 31

What factors determine whether a public body owes a duty of care?

Answer 31

When ascertaining whether a duty of care is owed, the same principles apply to public bodies as they do to individuals. However, even if those principles point towards the imposition of a duty of care, it will not be imposed if it would be incompatible with the intentions of the statutory scheme under which the public body operates

Question 32

Does a public body automatically have a duty of care based on its statutory duty or power to act?

Answer 32

No, a duty of care will not automatically be imposed on a public body in relation to an omission simply because the public body has a statutory duty or power to act. The intentions of the statutory scheme under which the public body operates must also be considered.

Question 33

What may prevent a common law duty of care from arising in negligence for a public body?

Answer 33

When considering the intentions of a statutory scheme under which a public body operates, the court may conclude that difficult decisions about resourcing or other ‘policy’ matters were not intended to give rise to a common law duty of care in negligence.

Question 34

When considering whether public bodies owe a duty of care, the starting point should be…

Answer 34

…to apply the same principles that are applicable to private individuals

Question 35

A police informant is claiming damages for negligence by the police. It is alleged that the police negligently left the informants contact details unattended in a police car which was stolen, and eventually reached the criminal against whom the informer had given evidence. The criminal broke into the informers’ house and physically assaulted them.

Which of the following statements best describes the principal reason why the police might owe the informer a duty of care?

A. A duty of care is owed because the police assumed responsibility for the informant’s welfare.

B. A duty of care is owed because the police created the source of danger.

C. A duty of care is owed because the informant is an identifiable victim.

D. A duty of care is owed because it is fair, just and reasonable.

E. A duty of care is owed because the informant has suffered a personal injury.

Answer 35

A

his answer best reflects why the Court of Appeal imposed a duty of care in the case of Swinney v Chief Constable of Northumbria (No.2), The Times, 25 May 1999 (same facts as the fact pattern). The police assume responsibility to protect informers against the criminals they give evidence about. Informers should not be considered like other members of the public; they have a special relationship with the police.
While the other answer options might sound plausible, they are each incorrect.
It would be fair, just and reasonable to impose a duty of care but this would not be the principal reason for imposing a duty (rather it would support that conclusion). The focus would be on whether the police had assumed responsibility for the claimant’s welfare (proximity).
Whilst being an identifiable victim certainly supports the argument for imposing a duty of care, recent case law suggests that not only must the claimant be identifiable, but the police must also have clearly assumed responsibility for the claimant’s welfare (Mitchell v Glasgow City Council [2009] 1 AC 874 , CN and GN v Poole Borough Council [2019] UKSC 25).
Whilst creating the source of danger could support the argument for imposing a duty of care, this argument was not emphasised in Swinney and focus seems to be on assumption of responsibility.
It is likely that in this scenario a duty of care would be owed for personal injury, but not for any property damage or economic loss. However, the fact the informer has suffered personal injury is not the reason why a duty would be owed.

Question 36

A man has a heart attack at home and his wife calls for an ambulance. It takes the ambulance four hours to arrive as all local ambulances are dealing with a multiple car crash. The local Ambulance Service has recently suffered cuts in funding. By the time the ambulance arrives, the man is dead.

Which of the following statements is most accurate regarding whether a duty of care was owed to this man by the ambulance service?

A. A duty of care was owed to arrive as soon as possible given the proximate relationship between the man and ambulance service.

B. A duty of care was owed to arrive within a reasonable time.

C. A duty of care was not owed as policy reasons justify the delay.

D. A duty of care was owed given the severity of his illness.

E. A duty of care was owed as operational failures have led to the delay.

Answer 36

B

Correct: There is clear precedent that on acceptance of a 999 call by the ambulance service, they owe a duty of care to respond within a reasonable time (Kent v Griffiths & Others [2000] 2 All ER 474).
While the other options might sound plausible, they are each incorrect.
A duty of care will always be owed on acceptance of the 999 call by the ambulance service (Kent v Griffiths & Others [2000] 2 All ER 474). Whether policy reasons (cuts in funding) are the cause of the delay is an argument relevant to breach of duty.
There is established precedent for the ambulance service owing a duty of care on acceptance of the 999 call (Kent v Griffiths & Others [2000] 2 All ER 474), so the courts would not have to discuss whether there was a proximate relationship between the claimant and defendant.
A duty of care will always be owed on acceptance of the 999 call by the ambulance service (Kent v Griffiths & Others [2000] 2 All ER 474). Whether operational failures are the cause of the delay is an argument relevant to breach of duty. For example, should they have sent one of the ambulances at the car crash to the man having a heart attack?
A duty of care will always be owed on acceptance of the 999 call by the ambulance service (Kent v Griffiths & Others [2000] 2 All ER 474), regardless of the severity of the illness. Decisions made regarding who to prioritise would be an argument relevant to breach of duty.

Question 37

A woman is in a supermarket when she collapses from a heart attack. The store manager, who is responsible for health and safety at the supermarket, puts a call out over the tannoy system asking if there is a doctor present. A customer hears the announcement and being a nurse comes forward and tries to help. The nurse fails to put the woman in the recovery position and the woman later dies.

Which of the following statements is the court most likely to agree with in relation to duty of care?

A. The store manager did not owe a duty as he could not foresee the harm. The nurse owed the woman a duty of care as she assumed responsibility for her welfare.

B. The store manager did not owe the woman a duty of care as they were complete strangers. The nurse, as a qualified medical professional, owed a duty to assist.

C. The store manager may owe the woman a duty of care especially as he took steps that suggested he had assumed responsibility for her welfare. The nurse owed a duty of care once she started to help.

D. The store manager did not owe the woman a duty of care as he omitted to help her. The nurse owed a duty of care once she started to help.

E. The store manager does not owe the woman a duty of care as has not had physical contact with her. The nurse owed a duty of care once she started to help.

Answer 37

C

he store manager is responsible for health and safety at the supermarket, and he made an announcement over the tannoy, so he has arguably taken steps that suggest he has assumed responsibility for the woman’s welfare (Barrett v Ministry of Defence [1995] 1 WLR 1217). Given he was responsible for health and safety at the supermarket, there is arguably a pre-existing relationship between him and the woman that aligns with Barrett, in a way that distinguishes these facts from cases where the parties are complete strangers. The nurse owed a duty of care once she started to assist (Barrett v Ministry of Defence) (Cassidy v MoH).
While the other options might sound plausible, they are each incorrect.
The claimant and defendant were arguably not complete strangers; there is a pre-existing relationship between the woman and store manager (who is responsible for health and safety at the supermarket). The fact the nurse was a qualified medical professional does not mean she owed a duty to assist. The duty only arose once she started to assist.
The store manager may have assumed responsibility for the woman’s welfare even though he has not had physical contact with her - he is responsible for health and safety at the supermarket and arguably took steps to suggest he had assumed responsibility by calling for help over the tannoy.
A reasonable person would be able to foresee personal injury if a woman collapsed.
The store manager has not omitted to help her. He has taken steps that suggest he has assumed responsibility for her welfare.

Question 38

Two friends are in a sailboat. The boat begins to sink and the two friends shout ‘help’ repeatedly to Friend A who is watching from the shore. Friend A hears them but does nothing to help them as he cannot swim.

Which of the following statements best describes whether a duty of care was owed by friend A to the two friends?

A. Friend A did not owe a duty of care as there was nothing he/she reasonably could have done to help given he/she could not swim.

B. Friend A owed a duty of care to assist as Friend A had assumed responsibility for the welfare of the two friends.

C. Friend A owed a duty of care to assist once he heard the two friends shouting for help.

D. Friend A did not owe a duty of care, his failure was one of omission.

E. Friend A owed a duty of care as he/she could foresee the risk of personal injury.

Answer 38

D

Correct. As a general rule, the law of tort does not impose a duty of care for a mere failure to act (Smith v Littlewoods Organisation Ltd [1987] AC 241). None of the exceptions to this general rule apply.
While the other options might sound plausible, they are each incorrect.
It does not matter that Friend A heard the two friends shouting help. Friend A would only owe a duty of care once he started to assist and had assumed responsibility for their welfare.
The fact pattern does not suggest that Friend A assumed responsibility for the two friends – he/she omitted to do anything.
Friend A may well have foreseen the risk of personal injury if he or she did nothing. However, a duty of care would not be imposed on this basis alone. There would have to be some kind of ‘proximity’ between the parties.
The fact that Friend A could not swim is irrelevant. Friend A was not obliged to help his/her friends even if he/she could swim.

Question 39

The door to an off licence is left unlocked one night by a cleaner. Some youths enter, consume large quantities of alcohol and cause lots of damage. When leaving the off licence, the youths vandalise the expensive garden ornaments belonging to the neighbour of the off licence. This has never happened before.

Which of the following statements is most accurate regarding whether a duty of care was owed to the off licence and/or neighbour?

A. The cleaner owes the off licence a duty of care due to their contractual relationship.
The off licence does not owe the neighbour a duty of care as they could not foresee the damage caused by the vandals.

B. The cleaner does not owe the off licence a duty of care as she is unlikely to be able to pay any damages.
The off licence does not owe the neighbour a duty of care as they could not foresee the damage caused by the vandals.

C. The cleaner owes the off licence a duty of care as he/she created the dangerous situation.
The off licence owes the neighbour a duty of care as they were responsible for the cleaner.

D. The cleaner does not owe the off licence a duty of care as this would be unfair, unjust and unreasonable.
The off licence owes the neighbour a duty of care due to geographic proximity.

E. The cleaner owes the off licence a duty of care as the damage to the off licence was reasonably foreseeable.
The off licence owes the neighbour a duty of care due to geographic proximity.

Answer 39

A

Correct. The cleaner has omitted to lock the door. As a general rule in the law of tort, no duty of care is owed for an omission (Smith v Littlewoods Organisation Ltd [1987] AC 241). However, this case falls within one of the exceptions to the general rule and Stansbie v Troman [1948] 2 KB 48can be relied on as precedent. The cleaner has failed to perform a quasi/contractual obligation.
The off licence would not owe the neighbour a duty of care because they could not foresee the property damage caused by the vandals. The facts are comparable to Smith v Littlewoods Organisation Ltd [1987] AC 241. Geographic proximity will not be enough to create a duty of care between the off licence and neighbour. There needs to be a closer relationship (see exceptions) for a duty of care to be imposed for a failure to prevent a third-party cause harm.
While the other options might sound plausible, they are each incorrect.
The damage to the off licence was reasonably foreseeable to the cleaner. However, the courts would not have to consider this as there is precedent they can rely on in relation to the cleaner owing the off licence a duty of care.
Geographic proximity will not be enough to create a duty of care between the off licence and neighbour. There needs to be a closer relationship (see exceptions) for a duty of care to be imposed for a failure to prevent a third-party cause harm.
The courts have precedent to rely on in relation to the cleaner owing the off licence a duty of care, so they would not have to consider whether it was fair, just and reasonable to impose a duty. If they did consider policy, arguably it would be fair to impose a duty on the cleaner. See above regarding geographic proximity.
The off licence probably does not owe a duty of care, partly, because they would not have foreseen the damage caused by the youths (Smith v Littlewoods Organisation Ltd [1987] AC 241). However, given there is precedent, it is irrelevant that the cleaner would be unable to pay damages. The cleaner would owe a duty of care.
The cleaner might owe a duty based on the fact that they created the danger by leaving the door unlocked, Stansbie v Troman [1948] 2 KB 48. However, the off licence does not owe the neighbour a duty of care simply because they were responsible for the cleaner. This does not fall into any of the exceptions for a failure to prevent a third-party causing harm.

Question 40

Question 1
A claimant is employed by a hospital as a research biochemist. One afternoon, while
conducting an experiment in the hospital laboratory, they lit a gas Bunsen burner and
there was a small explosion. As a result of the explosion the claimant sustained burns to
their hand.
The hospital have had the Bunsen burner inspected by an expert who has reported that
they cannot find anything wrong with it.
Which statement best explains whether the claimant will be owed a duty of care by the
hospital?
A Yes, because the type of harm was foreseeable, the claimant and the hospital were in
a proximate relationship and it is fair, just and reasonable to impose a duty of care on
the hospital.
B Yes, because there is an established duty between the claimant and the hospital as
the type of harm was foreseeable, the claimant and the hospital were in a proximate
relationship and it is fair, just and reasonable to impose a duty of care on the hospital.
C Yes, because there is an established duty between the claimant and the hospital.
D No, because the expert evidence suggests that it would not be fair, just or reasonable
to impose a duty of care on the hospital.
E No, because the expert evidence suggests that the harm suffered by the claimant was
unforeseeable.

Answer 40

Answer
Option C is correct as the claimant can rely upon the established duty of care between an
employer and its employees.
Option A is wrong because, while the foreseeability, proximity and fairness would seem
to be satisfied, this is not why a duty of care would be owed in this case. The Caparo test
(from Caparo Industries plc v Dickman [1990] 1 All ER 568) is only relied upon in novel (new)
duty situations. If the claimant falls within an established duty situation then they will not be
required to satisfy the Caparo test.
Option B is wrong because, while it does correctly state that this is an established duty
situation, it does not depend upon this claimant having to satisfy the Caparo test.
Option D is wrong because it is confusing the issue of whether a duty of care is owed with
whether the defendant may be in breach of its duty.
Option E is wrong for the same reason as option D.

Question 41

Question 2
A claimant was severely injured while canoeing on a river on their own. They had previously
purchased a guidebook published by the defendant and chose a stretch of the river
because it was described in the defendant’s guidebook as ‘a pleasant paddle on the river’.
The description was in fact grossly inaccurate and the defendant has now changed their
description in their new edition of the guidebook to read ‘this part of the river is dangerous
and should not be attempted’.
There is no previous case law that establishes whether the defendant owes the potential
claimant a duty of care in negligence. The defendant is a registered charity and all
proceeds of the sale of their guidebook are used to promote their charitable purpose.
Which of the following statements best describes whether the defendant owes the
claimant a duty of care in negligence?
A Yes, because the claimant is a foreseeable victim. It seems likely that any lack of
care by the defendant in advising on the safety of the river could cause harm to the
claimant.
B Yes, because the claimant is a foreseeable victim and there was a relationship of
sufficient proximity between the claimant and the defendant to justify imposition of a
duty of care. The fact that the claimant had purchased the guidebook would determine
the issue.
C Yes, because the defendant chose to publish the guidebook and the defendant was
also clearly at fault. It is only fair, just and reasonable therefore that the claimant
should be owed a duty of care.
D No, because while the claimant is a foreseeable victim, the court will be reluctant to
find that the defendant undertook any responsibility towards the claimant. The court
may also consider policy issues and determine that it would be unfair for a charity to
be liable to the public in these circumstances.
E No, because while the claimant is a foreseeable victim, there was not a relationship
of sufficient proximity between the claimant and the defendant to justify imposition of
a duty of care. However, the court will not consider any policy issues as that is beyond
their remit.

Answer 41

Answer
Option D is correct – it considers (and applies correctly) all three limbs of the Caparo test.
Option A is wrong because, while the injury to the claimant is foreseeable, this is not the only
criteria that the court would consider to determine whether a duty of care is owed in a novel
situation. The court would also consider the proximity of relationship between the parties and
whether it would be fair, just and reasonable to impose a duty of care.
Option B is wrong because the court would consider whether it would be fair, just and
reasonable to impose a duty and the fact that the claimant had purchased the guidebook
would not determine the issue.
Option C is wrong because the fact that the defendant may have been at fault does not
determine the issue of whether a duty of care is owed. Option C also fails to consider the first
two limbs of the Caparo test.
Option E is wrong because the courts can consider policy issues under the third limb of the
Caparo test.

Question 42

Question 3
The claimant owns and occupies property which is next to a cinema. The cinema is being
redeveloped by the defendants. The defendants have commenced work, but leave the
building locked and unattended at night. Vandals have broken in on a few occasions and
started small fires. The defendants did not have any knowledge of these fires as they were
extinguished by passers-by. However, on the last occasion the vandals broke in and started
a large fire which spread and caused extensive damage to the claimant’s property. The
claimant is seeking advice as to whether it should sue the defendants in negligence for the
damage caused.
Which of the following statements best describes why the defendants do not owe the
claimant a duty of care in negligence?
A Because the general rule is that there is no duty of care owed for omissions.
B Because the duty on an occupier would be too wide if it was held responsible for
damage caused to neighbouring property by third parties entering the occupier’s
property.
C Because the claimant’s damage was caused by the defendants’ failure to act and the
defendants had no knowledge of, or control over, the vandals.
D Because the defendants are not at fault as they did not start the fire.
E Because there is never a duty of care owed by a defendant to a claimant for the
actions of third parties.

Answer 42

Answer
Option C is correct – defendants can be liable for their omissions if they have a positive
duty to exercise control over third parties but this principle does not apply to the facts of
the claimant’s case. The defendants were not in a special (proximate) relationship with the
vandals and would not be expected to exercise control over them.
Option A is only partially correct because, while the general rule is that there is no duty of
care owed for omission, there are exceptions to this general rule.
Option B is also only partially correct because, while the courts can consider the wider
ramifications of their decision (ie policy), this is not in itself cause of an exception to the
general rule that there is no duty for omission.
Option D is wrong as, while the defendants may or may not have been at fault, this is not an
issue that determines whether a duty of care is owed (it is, however, relevant to breach).
Option E is wrong as the statement is too absolute, ie there are exceptions (eg Home Office v
Dorset Yacht Co Ltd [1970] AC 1004), but this exception does not apply to the claimant’s facts.