Negligence — duty of care

TOR.01 Negligence — Duty of Care

Negligence has four elements: duty, breach, causation, and damage (not too remote). Duty asks: did the defendant owe this claimant a legal obligation to take care?

The core test

For novel/uncertain situations, apply the three-stage test from Caparo Industries plc v Dickman [1990]:

1. Foreseeability of harm to the claimant;
2. Proximity of relationship between the parties;
3. Whether it is fair, just and reasonable to impose a duty.

But note the modern approach in Robinson v Chief Constable of West Yorkshire [2018] (Supreme Court): Caparo is not a universal test applied to every case. Where an established duty category exists (e.g. driver/road-user, doctor/patient, employer/employee, manufacturer/consumer), the court applies that precedent incrementally by analogy. The full three-stage test is reserved for genuinely novel situations. Donoghue v Stevenson [1932] (the "neighbour principle") remains the foundation.

Particular problem areas

• Omissions / pure failures to act: generally no duty to act or rescue. Exceptions: an assumed responsibility, a special relationship, control over a third party, or creating the source of danger.
• Acts of third parties: generally no duty to prevent harm caused by another (Mitchell v Glasgow CC), subject to the same exception categories.
• Public bodies / police: no general duty in the conduct of operational functions; liability usually requires a recognised exception (Robinson; Michael v CC South Wales).
• Pure economic loss: generally not recoverable in the tort of negligence — except via assumption of responsibility for negligent statements/services under Hedley Byrne v Heller [1964] (reliance must be reasonable).
• Psychiatric harm: distinguish primary victims (in the zone of physical danger — only physical injury need be foreseeable, Page v Smith) from secondary victims (must satisfy the Alcock control mechanisms: close ties of love and affection, proximity in time and space to the event/immediate aftermath, perception by own unaided senses, and a recognised psychiatric illness).

Common traps

• Do not recite Caparo mechanically — start by asking whether an established category applies (Robinson).
• Keep duty separate from breach (the standard of care / Bolam) — examiners test confusion between the two.
• "Foreseeability" features in duty, breach and remoteness — identify which stage is in issue.
• A recognised psychiatric illness is required; ordinary grief or distress is not actionable.