Negligence - Duty of care

Learning Outcomes

This article explains the fundamental concept of the duty of care as the first element required to establish liability in the tort of negligence. It outlines situations where a duty is well-established and introduces the legal tests applied by the courts when considering novel duty scenarios, specifically the Caparo three-stage test. Furthermore, it addresses the specific legal principles governing liability for omissions and the acts of third parties. After studying this article, you should be able to identify and apply these core principles to SQE1 assessment questions.

SQE1 Syllabus

For SQE1, you are required to understand the principles governing the duty of care in negligence. This involves recognising when a duty is established by precedent and how courts approach novel situations. You will need to apply this knowledge to various factual scenarios presented in single best answer multiple-choice questions.

Pay particular attention in your revision to:

• The requirement of a duty of care as the initial element in establishing negligence.
• Common examples of established duty situations (eg, road users, doctor-patient).
• The three-stage test derived from Caparo Industries plc v Dickman for determining duty in novel situations: reasonable foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty.
• The general principle of no liability for omissions and the exceptions to this rule.
• The general principle of no liability for the acts of third parties and the exceptions to this rule.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which case established the modern three-stage test for determining a duty of care in novel situations?
   1. Donoghue v Stevenson
   2. Caparo Industries plc v Dickman
   3. Hedley Byrne & Co Ltd v Heller & Partners Ltd
   4. Home Office v Dorset Yacht Co Ltd
2. Which of the following is NOT typically required to establish a duty of care using the Caparo test?
   1. Reasonable foreseeability of harm.
   2. A pre-existing contractual relationship.
   3. Sufficient proximity between the claimant and defendant.
   4. That it is fair, just, and reasonable to impose a duty.
3. Generally, does English law impose a positive duty to act (ie liability for omissions)?
   1. Yes, in all circumstances.
   2. Yes, but only if harm was reasonably foreseeable.
   3. No, except in specific circumstances (eg, special relationships, control).
   4. No, liability is never imposed for failing to act.

Introduction

To succeed in a claim for negligence, a claimant must first establish that the defendant owed them a legal duty of care. This duty signifies a legal obligation requiring the defendant to comply with a standard of reasonable care while performing acts that could foreseeably harm others. Without establishing this initial duty, a claim in negligence cannot proceed, regardless of whether the defendant acted carelessly or caused damage. This article examines how the existence of such a duty is determined.

Establishing a Duty of Care

The existence of a duty of care is a question of law. Courts determine whether a duty exists by referring to established legal precedent or, in situations not previously considered, by applying specific legal tests.

Established Duty Situations

In many common relationships and scenarios, the courts have already determined that a duty of care exists. These are known as established duty situations. In these instances, it is unnecessary to apply complex legal tests; the duty is recognised based on precedent.

Examples include the duty owed by:

• Road users to other road users (including drivers, pedestrians, cyclists).
• Doctors to their patients regarding medical treatment.
• Employers to their employees concerning workplace safety.
• Manufacturers to consumers regarding product safety.
• Solicitors to their clients concerning legal advice and services.

If a scenario clearly falls within one of these (or other recognised) established duties, you can proceed directly to considering breach of duty.

Key Term: Duty of care A legal obligation imposed on an individual requiring compliance with a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element required to establish liability in negligence.

Novel Duty Situations

Where no established precedent exists for the specific relationship or circumstances, the situation is considered 'novel'. The courts approach novel situations incrementally, drawing analogies from existing duty situations where possible. The primary test applied today originates from the House of Lords decision in Caparo Industries plc v Dickman [1990] 2 AC 605.

The Caparo Test

The Caparo test involves examining three criteria to determine if a duty of care should be imposed:

1. Reasonable Foreseeability of Harm: Was it reasonably foreseeable that the defendant’s actions or omissions could cause damage to the claimant (or a class of persons to which the claimant belongs)? This involves an objective assessment from the viewpoint of the reasonable person.

2. Proximity: Was there a sufficiently proximate relationship between the claimant and the defendant? Proximity considers the closeness and directness of the relationship, not just physical closeness. It encompasses factors like reliance, responsibility, and the nature of the interaction.

Key Term: Proximity The legal concept referring to the closeness and directness of the relationship between the claimant and defendant, necessary to establish a duty of care in negligence. It considers factors beyond physical distance.

1. Fair, Just and Reasonable: Is it fair, just and reasonable, in all the circumstances, to impose a duty of care on the defendant? This stage allows courts to consider broader public policy implications, such as the potential for indeterminate liability ('floodgates'), the impact on defensive practices (especially for public bodies), and the availability of alternative remedies.

All three stages of the Caparo test must be satisfied for a duty of care to be found in a novel situation.

Worked Example 1.1

A local council approves building plans for a new block of flats. Years later, cracks appear due to inadequate foundations specified in the approved plans. An owner suffers financial loss because their flat's value decreases significantly. Assume this is a novel situation. Does the council owe the owner a duty of care regarding the financial loss?

Answer: Applying the Caparo test:

1. Foreseeability: It might be foreseeable that negligent plan approval could lead to defects and subsequent financial loss for owners.
2. Proximity: The relationship between the council (approving plans for public safety/building standards) and a future purchaser suffering economic loss due to a defect is generally considered not sufficiently proximate in law.
3. Fair, Just & Reasonable: Imposing a duty for pure economic loss on a local authority in these circumstances could open the floodgates to numerous claims and unduly interfere with the council's public functions. Courts have generally found it not fair, just, and reasonable. Therefore, based on Caparo principles (particularly proximity and fairness), a duty of care regarding pure economic loss is unlikely to be owed by the council to the flat owner in this scenario (see Murphy v Brentwood District Council [1991] 1 AC 398).

Special Duty Problems: Omissions and Third Parties

The general principles of duty of care primarily address positive acts causing harm. Specific rules apply to situations involving failures to act (omissions) and harm caused by third parties.

Omissions

The general rule in English law is that there is no liability for pure omissions – failing to act. A person is not typically under a legal duty to rescue a stranger or prevent harm from occurring if they did not create the danger.

Key Term: Omission A failure to act. In negligence, liability for omissions is generally not imposed unless specific exceptions apply.

However, exceptions exist where a duty to act positively may arise:

• Control: Where the defendant exercises a high degree of control over the claimant (e.g., parent/child, school/pupil, employer/employee).
• Assumption of Responsibility: Where the defendant has voluntarily assumed responsibility for the claimant's safety or well-being.
• Creation or Adoption of Risk: Where the defendant has created a dangerous situation or has 'adopted' a risk created by another, they may be under a duty to act to mitigate that danger.

Third Party Acts

Similarly, there is no general duty to prevent a third party from causing harm to the claimant.

Key Term: Third Party Liability Liability of a defendant for damage caused to the claimant by the actions of someone other than the defendant. Generally not imposed in negligence unless specific exceptions apply.

Exceptions where a duty may arise in respect of third-party actions include:

• Special Relationship between Defendant and Claimant: Where the defendant has a protective relationship towards the claimant (e.g., occupier/visitor in specific circumstances).
• Special Relationship between Defendant and Third Party: Where the defendant has control over the third party who causes the harm (e.g., prison authorities/prisoners as in Home Office v Dorset Yacht Co Ltd [1970] AC 1004).
• Creation of a Source of Danger: Where the defendant creates a danger that is foreseeably interfered with by a third party causing damage.
• Failure to Abate a Known Danger: Where the defendant knows or ought to know that a third party has created a danger on their property and fails to take reasonable steps to abate it.

Worked Example 1.2

A company owns a disused warehouse. Vandals frequently break in and have started small fires previously, though the company is unaware of the fires. One night, vandals start a larger fire which damages an adjacent property owned by Clara. Does the company owe Clara a duty of care?

Answer: Generally, an occupier is not liable for damage caused by trespassers. However, exceptions exist. Here, the company did not create the danger (the fire). Liability could potentially arise if the company 'adopted or continued' a nuisance created by a third party by failing to take reasonable steps after knowing or having means of knowing about it. Since the company was unaware of the previous fires, it is unlikely they knew or ought to have known of the specific danger of fire posed by vandals. Therefore, based on Smith v Littlewoods Organisation Ltd [1987] AC 241, a duty of care regarding the fire damage is unlikely to be owed to Clara.

Exam Warning

Be careful to distinguish between established duty situations and novel ones. Do not unnecessarily apply the Caparo test if precedent clearly establishes a duty (or lack thereof). Conversely, in novel situations, ensure you address all three stages of the Caparo test. Remember that liability for omissions and acts of third parties is exceptional and requires specific justification based on the recognised exceptions.

Key Point Checklist

This article has covered the following key knowledge points:

• A duty of care is the first essential element of negligence.
• In many situations (eg, road users, doctor-patient), a duty of care is already established by precedent.
• In novel situations, the existence of a duty is determined by applying the Caparo three-stage test: reasonable foreseeability of harm, proximity of relationship, and whether imposing a duty is fair, just, and reasonable.
• The law generally does not impose liability for pure omissions (failure to act) unless specific exceptions apply, such as control, assumption of responsibility, or creating a risk.
• There is generally no duty to prevent harm caused by third parties, except in specific circumstances involving special relationships, control, or failure to abate a known danger created by a third party.
• Policy considerations play a significant role in determining duty, especially in novel situations and cases involving public bodies.

Key Terms and Concepts

• Duty of care
• Proximity
• Omission
• Third Party Liability