1. Liability in Negligence
The duty of care

2. Lesson Objectives
I will be able to define a duty of care in terms of the neighbour principle
I will be able to state the three-part Caparo test for the existence of a duty of care
I will be able to explain each part of the Caparo test by reference to decided cases

3. Background The law of negligence has been developing for many years
Definition comes from Blyth v Birmingham Waterworks Co. (1856) – Baron Alderson
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs , would do, or doing something which a prudent and reasonable man would not do.”

4. Reasonable man is at the centre of negligence – what the reasonable man would do is to try to fulfil his duties to other people
This would include a duty of care owed to others. A duty of care is simply a duty to take care of others or look out for them
The legal definition is a little more complex – the law has struggled to define what a duty of care is or at least how to decide the circumstances in which a duty of care is owed by one person to another
The famous case of Donoghue v Stevenson (1932) was an attempt to do this

5. Donoghue v Stevenson (1932) – this famous case set out the neighbour principle in the law of negligence. This principle is the foundation of the modern law
Lord Atkin:
“the rules that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

6. This makes it clear that there can be liability without a contract and gave the opportunity for the law to develop the rules of negligence
Donoghue v Stevenson set out a satisfactory principle but as the world became more complex the test became too simple so the latest test comes from Caparo v Dickman (1990) – this case sets out the modern three-part test to decide whether a duty of care exists in situations where there is no precedent for a duty of care

7. The three-part test in Caparo v Dickman
Facts of the case
The general test set out requires three elements to be demonstrated:
1. it was reasonably foreseeable that a person in the claimant’s position would be injured
2. there was sufficient proximity between the parties
3. it is fair, just and reasonable to impose liability on the defendant
All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the claimant

8. The first part - forseeability
This is an objective test: would a reasonable person in the defendant’s position have foreseen that someone in the claimant’s position might be injured?
In D v S, it can be seen that failing to stop a snail getting into a bottle will affect the consumer of the contents. This is a consequence of producing food that has foreign bodies in it, and a reasonable person in the defendant’s position would foresee that the claimant might be injured

9. A good example of the first part of the test can be seen in Kent v Griffiths (2000)
This case is an example of foreseeability in that it is foreseable that an injured person waiting for an ambulance may have more severe injuries if there is a delay

10. The second part - proximity
Proximity is related to the concept of foreseeability. Proximity just means closeness.
There can be proximity by space, time or relationship – if I crash my car into yours, I am proximate in time and space, but not necessarily in relationship
If I crash into my son’s car, whilst there is a relationship, it is not relevant to my liability which is based on time and space
Relationship only becomes relevant when it makes the loss foreseeable to a person in the defendant’s position

11. Bourhill v Young (1943) – here there was no physical proximity, as the claimant was in a safe place away from the accident, and whilst she could hear it, she could not see it. She later went to see the aftermath and then suffered her miscarriage
McLoughlin v O’Brien (1983) – the claimant was told of events and rushed to see her injured family. She then suffered shock. Even though there was no proximity of space and time, the relationship overrode this to make the defendant liable

12. In most cases there is little issue of proximity as the accident victim is part of the event. However, where a person learns about an event later or sees it from a safe distance and where the injury is psychiatric, (so-called ‘nervous shock’), then relationship is the key factor

13. The third part - reasonableness
The third part of the test, whether it is fair, just and reasonable to impose a duty of care, is really a matter of public policy
Traditionally, the courts were always concerned that any extension to the types of claim that could be brought before them would open the ‘floodgates of litigation’

14. Today, the courts are looking at what is best for society as a whole
Today, the courts are looking at what is best for society as a whole. Thus, defendants who are in the public sector are more likely to find that claims against them fail, as it is not fair and reasonable to impose liability on them
The police need to be able to act without undue worry about legal action in negligence against them
Hill v Chief Constable of West Yorkshire (1988) – the police were found not to owe a duty of care to potential victims of crime and their families on policy grounds. This an example of the reasonableness part of the Caparo three-part test

15. However, the police do owe a duty of care in some circumstances – e. g
However, the police do owe a duty of care in some circumstances – e.g. they usually owe a duty of care to people taken into custody as can be seen from MPC v Reeves (2001) – the police owe a duty of care to prisoners taken into custody
There are limits to this duty of care, or at least as to whether the duty has been broken – Orange v Chief Constable of West Yorkshire (2001) – the police’s duty of care only extends to known risks to a particular prisoner
Similarly, the police do not owe a duty of care to a prisoner who is injured whilst making an escape attempt – Vellino v Chief Constable of Greater Manchester (2001)

16. The fire service has a similar, limited, protection against claims in negligence, but the legal profession no longer has that immunity following the case of Hall v Simons (2000)
When applying the Caparo test, say why each part is or is not present in the scenario. You must give a reason for your decision, not just assert.