Negligence - Duty of Care

Question 1

What has the requirement of a Duty of Care been described as?

Answer 1

Duty of care effectively acts a gateway to recovering damages in negligence – if C can’t pass through it, their action will fail from the outset. If D owes C no duty of care in respect of the kind of loss suffered, then D will incur no liability regardless of how carelessly he acted and how much loss he caused to the claimant.

Question 2

What issues have the courts had regarding the pre-requisite of a duty of care?

Answer 2

The courts have had great difficulty in setting down any single test which will determine when a duty of care is owed to the claimant.

Question 3

What were the two early tests conceived for establishing a duty of care (discussed in the introduction cards)?

Answer 3

Donoghue v Stevenson – the neighbour principle - take reasonable care to avoid harming others whom it is reasonably foreseeably would be directly affected by your actions
Anns v Merton LBC – a duty of care will arise wherever it is reasonably foreseeable that others may be harmed by your carelessness, unless there are policy reasons for denying or restricting such a duty

Question 4

Which case rejected both of these early conceptions/tests for a duty of care?

Answer 4

Caparo v Dickman

Question 5

What were the details of the Caparo Case?

Answer 5

The claimants bought shares in F plc in reliance on an audit into the company’s finances carried out by the defendant. In fact the accounts published by the defendant were inaccurate and the claimants sued in negligence.

Question 6

What was the finding in the Caparo Case?

Answer 6

It was held that no duty of care was owed, so the claim failed.

Question 7

How did Lord Bridge signal rejection of the Donoghue and Anns tests for a duty of care?

Answer 7

He said, in Caparo - “[S]ince the Anns case a series of decisions … have emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope.”

Question 8

How did Lord Bridge, in Caparo, suggest that the previous (Donoghue and Anns) tests for a duty of care were too narrow and thus insufficient/inappropriate?

Answer 8

He said - ‘in addition to the foreseeability of damage, … there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty’.

Question 9

How did Lord Bridge recognise a shift in the values/reasoning of the law?

Answer 9

He said - ‘I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes.’

Question 10

To whose words did Lord Bridge crucially refer in discussing the implications of Caparo?

Answer 10

Brennan J - saying - ‘We must now, I think, recognise the wisdom of the words of Brennan J. in the High Court of Australia in Sutherland Shire Council v. Heyman’.

Question 11

To which words of Brennan J was Lord Bridge referring?

Answer 11

Brennan J said, in the case of Sutherland Shire Council v Heyman - ‘It is preferable … that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable “considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.’”

Question 12

What test did Caparo lay down for establishing the existence of a duty of care?

Answer 12

Caparo is typically read as setting down a tripartite test for the establishment of a duty of care;

1. Was it reasonably foreseeable that a failure to take care could cause damage to the claimant? (e.g. Palsgraf v Long Island Railroad Co)
2. Was there a relationship of proximity between the claimant and the defendant?
3. Is it fair, just and reasonable that the law should recognise a duty on the defendant to take reasonable care not to cause that damage to the claimant?

Question 13

What is the significance of the three stages laid down in Caparo?

Answer 13

The first two considerations are arguably given more concrete or explicit recognition in the previous Donoghue and Anns tests - even the third point is eluded to somewhat in Anns - the ‘fair, just and reasonable’ criterion recognises that the imposition of a duty of care is an issue of policy and that any extension of tortious liability will occur on an incremental basis.

Question 14

What are the practical implications of the notion that the ‘fair, just and reasonable criterion’ is an issue of policy to be approached incrementally?

Answer 14

This appears to mean that a court should recognise a duty of care as arising on a given set of facts only where it can find some previous decision where a duty of care has been recognised in an analogous situation. In such circumstances it may be justified to extend the duty of care incrementally to the new situation.

Question 15

What are the problems with the Caparo test?

Answer 15

1. The three-stage ‘test’ doesn’t seem to do what we want a legal test to do
2. The ‘incremental and by analogy’ approach is retrogressive – suggesting a return to the law as it was pre-Donoghue – and, importantly, it is unjust.

Question 16

How has the Caparo test been criticised for being imprecise or overly vague?

Answer 16

Lord Roskill, in Caparo, said - ‘Phrases such as ‘foreseeability’, ‘proximity’, ‘neighbourhood’, ‘just and reasonable’, ‘fairness’ … will be found used from time to time in the different cases. But … such phrases are not precise definitions. At best they are but labels or phrases descriptive of the very different factual situations which can exist in particular cases and which must be carefully examined in each case before it can be pragmatically determined whether a duty of care exists’

Question 17

How has the Caparo test been criticised for an overlap of the supposedly 3 separate parts/components?

Answer 17

Lord Oliver, in Caparo, said - ‘it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible’.

Question 18

Does the three-stage Caparo test apply to all claims in negligence?

Answer 18

No - such a position was observed by Lord Reed in the case of Robinson v Chief Constable of West Yorkshire.

Question 19

How was the inapplicability of Caparo to all situations reinforced?

Answer 19

Lord Toulson JSC observed, in Michael v Chief Constable of South Wales Police, that the whole point of Caparo was to repudiate idea that there was a single test to determine whether a duty of care exists.

Question 20

What were the details of the Robinson Case?

Answer 20

The claimant was a relatively frail woman of 76. She was walking down a busy shopping street when she was knocked over by two police officers attempting to arrest a suspected drug dealer. They all fell to the ground, with the claimant underneath. Did the police officers owe a duty of care to the claimant?

Question 21

What was the finding of the Robinson Case?

Answer 21

The Supreme Court held that since there was a reasonably foreseeable risk of injury if the arrest was attempted, when pedestrians … were close to the suspect and might be knocked into and injured in the course of his attempting to escape, the police officers owed a duty of care towards pedestrians, including the claimant, in the immediate vicinity when the arrest was attempted.

Question 22

How does the finding in the Robinson Case illustrate that the Caparo test is not applied/applicable in all instances of negligence?

Answer 22

It was said that the Robinson case did not depend on Caparo, but on the application of existing principles of the law of negligence. Indeed, in the Robinson case it was found that reasonably foreseeable risk of injury was (alone) sufficient to impose a duty of care - consideration was not given to all three facets of the Caparo test.

Question 23

What else was established in the Robinson case, by Lord Reed?

Answer 23

It was also established that - In the absence of a ‘general principle’ or ‘universal touchstone’ for imposition of duty of care, common law has taken established categories of situations where a duty of care is recognised.

Question 24

What examples are there of established categories in which a duty of care will be recognised?

Answer 24

1. By motorists to other road users
2. By manufacturers to consumers
3. By employers to their employees
4. By doctors to patients

Question 25

Which case demonstrated the practical application of the notion of ‘established categories’ for the recognition of a duty of care, laid down in Robinson?

Answer 25

Darnley v Croydon Health Services NHS Trust

Question 26

What were the details of the Darnley Case?

Answer 26

1. The claimant suffered a head injury after being struck on the head by an unknown assailant. 2. He went to an ‘A & E’ department, managed by the defendant NHS Trust.
2. The receptionist told the claimant that he would have to go and sit down and wait up to 4-5 hours before he was examined.
3. He decided to leave after 19 mins as he felt unwell and went home.
4. He was subsequently taken back by ambulance to the A & E department, where a CT scan identified a large extra extra-dural haematoma.
5. He was transferred to neurosurgeons in another hospital and underwent an operation for evacuation of the haematoma.
6. He suffered permanent brain damage and hemiplegia (paralysis of one side).

Question 27

What was the finding in the Darnley Case and how does this recognise the aforementioned ‘established categories’ reasoning?

Answer 27

The Supreme Court held that the case did not concern the imposition of duty of care in a novel situation as it fell within the established category of a duty of care owed by those who provide and run casualty to take reasonable care not to cause physical injury to a patient. This duty to take reasonable care extends to a duty to take reasonable care not to provide misleading information that may foreseeably cause physical injury.

Question 28

What is the relationship between the Caparo test and the established categories approach?

Answer 28

It was said that the Caparo test ‘does not require a re-evaluation of whether these criteria are satisfied on every occasion on which an established category of duty is applied’.

Question 29

How did Lord Reed, in the Robinson Case, reinforce the position regarding the relationship between Caparo and the established categories?

Answer 29

Lord Reed said in the case of Robinson - ‘Where the existence of a duty of care has been established, justice and reasonableness has already been taken account in arriving at the relevant principles’.

Question 30

What did Lord’s Reed and Mance say, in the case of Robinson, regarding the applicability of the Caparo test?

Answer 30

Lord Reed said, in Robison, that - outside any established category (i.e. novel cases) the law will proceed incrementally and by analogy with established authorities. Lord Mance, in Robinson, said that -(in novel cases) all 3 stages of Caparo test will be material.

Question 31

Which case illustrates the practical approach of the courts to the application/use of the Caparo test?

Answer 31

Marc Rich & Co. v. Bishop Rock Marine Co. Ltd (the Nicholas H)

Question 32

What are the details of the Bishop Rock Marine Case?

Answer 32

1. The claimants’ cargo was being transported across the Atlantic when the ship carrying it developed cracks in its hull.
2. It docked for repairs, but the shipowners opted for temporary repairs, leaving more extensive and permanent repairs till after the voyage.
3. The defendants – a classification society – had the job of checking the work to see that the ship was indeed seaworthy.
4. The defendants recommended that the ship was safe to proceed.
5. The ship sank a few days after leaving port and the claimants’ cargo was lost.
6. They sued the defendants.

Question 33

What was the finding of the Bishop Rock Marine Case?

Answer 33

It was held by the House of Lords that the defendant had owed no duty of care to the claimant.

Question 34

Was the Caparo test applied in the case of Bishop Rock Marine Case?

Answer 34

No, Lord Steyn acknowledged it’s existence and potential application as a useful tool, but then went on to say - ‘[in the instant area] none of the cases cited provided any realistic analogy to be used as a springboard for a decision … The present case can only be decided on the basis of an intense and particular focus on all its distinctive features, and then applying established legal principles to it.’

Question 35

To whose statement did Lord Steyn refer when clarifying the courts position on the practical application of the Caparo test in the Bishop Rock Marine Case?

Answer 35

Lord Steyn, giving the majority opinion, acknowledged the Caparo 3-stage test, but then immediately endorsed a statement from Saville LJ in the Court of Appeal.

Question 36

What did Saville LJ, in the Court of Appeal, say regarding the practical application of the Caparo test?

Answer 36

He said - “[T]he three so-called requirements for a duty of care are not to be treated as wholly separate and distinct requirements but rather as convenient and helpful approaches to the pragmatic question whether a duty should be imposed in any given case. In the end whether the law does impose a duty in any particular circumstances depends upon those circumstances”

Question 37

Overall, what is the laws position on the application of the Caparo test?

Answer 37

1. Where there is a binding authority (i.e. the case falls within an established category) this will provide the answer
2. Where the case or situation is a novel one it should be developed incrementally and by analogy, with full application of the Caparo test
3. In some instances application of the Caparo test may be limited - in some areas the courts have come up with more precise tests fo determining duties of care (e.g. Alcock Case in regards to Psychiatric Harm)

Question 38

How often will the Caparo test be adopted in practice?

Answer 38

It is only relatively rarely that the courts have to weigh up the relevant factors from scratch (through application of the Caparo test). Indeed in the vast majority of cases, the question of duty will not be in doubt.

Question 39

What factors do the court take into account when determining whether a duty of care exists?

Answer 39

As eluded to by LJ Saville in the Court of Appeal, the courts consider the circumstances of a particular case when deciding if a duty of care exists, the two key considerations of the court are;

1. While we should always take care to avoid harming others, this does not mean that a duty of care will always be owed in such circumstances.
2. Even where we think it objectionable to cause harm, we may consider that the law should not enforce such conduct.

Question 40

What did Lord Rodger say in support of the notion that a duty of care is not always owed in circumstances in which we should take care to avoid harming others?

Answer 40

He said, in the case of D v East Berkshire Community NHS Trust, that - ‘Harm which constitutes a “wrong” in the contemplation of the law must, of course, be remedied. But the world is full of harm for which the law furnishes no remedy … A young man whose fiancée deserts him for his best friend may become clinically depressed as a result, but in the circumstances the fiancée owes him no duty of care to avoid causing this suffering. So he too will have no right to damages for his illness’.

Question 41

What are the 5 key instances illustrating the argument/position that the law may not provide remedies even in cases where we deem it objectionable to cause harm?

Answer 41

1. Distinction between acts and omissions
2. Seriousness of the harm
3. Impact of liability upon the defendant
4. Impact of liability upon society
5. Competence of the courts

Question 42

How does the distinction between acts and omissions illustrate the argument about the availability of remedies even in cases where it’s deemed objectionable to cause harm?

Answer 42

The law is generally more ready and willing to prohibit acts rather than omissions - e.g. Sutradhar v Natural Environment Research Council

Question 43

How does the seriousness of the harm llustrate the argument about the availability of remedies even in cases where it’s deemed objectionable to cause harm?

Answer 43

Some harms aren’t considered sufficiently serious to merit legal redress - e.g mere anxiety and upset (as opposed to recognised psychiatric illnesses) are, by themselves, insufficient to ground a claim - e.g. Rothwell v Chemical & Insulating Co Ltd

Question 44

How does the impact of liability upon the defendant llustrate the argument about the availability of remedies even in cases where it’s deemed objectionable to cause harm?

Answer 44

A duty of care may be denied if it is considered that liability would have an undesirable impact on the defendant/others in his position.

Question 45

What are the two key ways in which liability may impact upon the defendant or others in his position?

Answer 45

1. “Defensive” practices – the fear that the threat of liability could lead people in the defendant’s position to act overcautiously - e.g. Hill v Chief Constable of West Yorkshire
2. Excessive and “crushing” liability – the fear that if the defendant was held to owe a duty of care, he/she may face overwhelming and crippling claims for compensation - e.g. the psychiatric injury cases, Caparo

Question 46

How does the impact of liability upon society llustrate the argument about the availability of remedies even in cases where it’s deemed objectionable to cause harm?

Answer 46

A duty of care may also be denied if it is thought that liability may have an undesirable impact on society (or a subset of it).

Question 47

How does the competence of the courts llustrate the argument about the availability of remedies even in cases where it’s deemed objectionable to cause harm?

Answer 47

A duty of care will also be denied if the court considers that it is not competent to review the actions of the defendant.