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.

The discussion also develops the incremental approach to duty determination, showing when Caparo is not required because precedent already provides an answer. It clarifies the difference between positive acts and omissions, the narrow exceptions to the no-liability rule for omissions, and the limited circumstances in which defendants may be liable for harm done by third parties. You will see how proximity is often found where there is an assumption of responsibility or control, and how public policy informs the fair, just and reasonable stage—especially for public bodies. Throughout, linked areas (pure economic loss and psychiatric harm) are flagged where they affect duty analysis through proximity and policy.

SQE1 Syllabus

For SQE1, you are required to understand the negligence duty of care, with a focus on the following syllabus points:

• Recognise that duty of care is the first element in negligence and is a question of law determined by precedent or, if novel, by an incremental approach and the Caparo test.
• Identify established duty situations (e.g., road users to other road users; doctor-patient; employer-employee; manufacturer-consumer; teacher-pupil; solicitor-client; occupier-visitor).
• Apply the three-stage test derived from Caparo Industries plc v Dickman for novel situations: reasonable foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty.
• Distinguish cases of positive acts (ordinary principles) from omissions (no general duty to act) and apply recognised exceptions to omissions: control, assumption of responsibility, and creation/adoption of a risk.
• Analyse liability for the acts of third parties by reference to recognised exceptions (special relationships, control over the third party, creation of danger, failure to abate a known danger).
• Appreciate the incremental, analogical method: do not revert to Caparo where a category is established or clearly negated by authority.
• Understand the particular policy considerations and proximity hurdles in duty claims involving public bodies (including police) and how these interact with the omissions/third-party frameworks.
• Be aware that pure economic loss and pure psychiatric harm involve additional proximity and policy limits on duty (covered in depth elsewhere) but may shape duty outcomes in this chapter’s scenarios.

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.

The law has evolved in two related ways. First, many duties are established by authority, so courts do not re-argue duty in routine settings. Second, where a proposed duty is genuinely novel, courts proceed incrementally by analogy with existing categories and, if necessary, use the three-stage framework in Caparo. Recent guidance emphasises that Caparo is not a universal formula to be applied mechanically; where precedent provides the answer—either recognising or negating a duty—the court should follow it without invoking Caparo.

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, passengers, pedestrians, cyclists).
• Doctors to their patients regarding medical treatment.
• Employers to their employees concerning workplace safety.
• Manufacturers to consumers regarding product safety.
• Teachers to pupils and lecturers to students.
• Solicitors and other professional advisers to their clients concerning advice and services.
• Occupiers to lawful visitors under statute (Occupiers’ Liability Act 1957).
• Those who by a positive act create a danger to foreseeable rescuers (the negligent creator of a dangerous situation owes a duty to a rescuer who attempts a rescue).

If a scenario clearly falls within one of these (or other recognised) established duties, you can proceed directly to considering breach of duty. Conversely, some relationships are established as not giving rise to a duty in particular contexts (for example, the police generally owe no duty in negligence for how they investigate crime to individual members of the public, although they do owe ordinary duties when carrying out positive acts that risk physical injury). This emphasises the importance of identifying whether a case involves a positive act or an omission and whether the situation matches well-trodden categories.

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. Courts have, however, stressed that this threefold test is a framework rather than a substitute for precedent, and that the law develops step-by-step by comparison to existing categories.

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. Foreseeability sets a necessary baseline but does not, on its own, establish a duty.

2. Proximity: Was there a sufficiently proximate relationship between the claimant and the defendant? Proximity concerns the closeness and directness of the relationship and may arise in different ways: through pre-existing relationships (e.g., doctor-patient), through control, or through an assumption of responsibility. Proximity is often absent in cases of pure omissions or pure economic loss unless a special relationship can be shown.

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.

Key Term: Assumption of responsibility
A situation in which the defendant undertakes, expressly or impliedly, to safeguard the claimant’s interests (for example, by providing information or services on which the claimant will reasonably rely). It is a key route to establishing proximity, especially in economic loss and some public body cases.

1. Fair, Just and Reasonable (FJR): Is it fair, just and reasonable, in all the circumstances, to impose a duty of care on the defendant? This stage permits consideration of broader policy implications: indeterminate liability concerns, the risk of defensive practices, resource allocation, the coherence of the law with statutory schemes, and whether alternative remedies or regulatory oversight already exist.

Key Term: Fair, just and reasonable
The policy-sensitive stage of the Caparo analysis that asks whether, in all the circumstances, it is appropriate to impose a duty of care.

All three stages of the Caparo test must be satisfied for a duty of care to be found in a novel situation. Courts also emphasise the incremental method: if authority closely analogous to the facts exists, it should be followed rather than extending liability dramatically in one leap.

Two further practical points guard against over-extending duty. First, the ordinary law distinguishes positive acts from omissions: liability for failures to act is highly exceptional. Second, even if a duty exists, liability is confined to harm falling within the scope of the duty undertaken (for example, a professional’s duty regarding advice is concerned with risks the advice was meant to guard against). Scope of duty is ordinarily considered later when addressing breach and causation; the point here is that a finding of duty does not open the floodgates to all conceivable loss.

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. This reticence reflects concerns about imposing indeterminate burdens and about individuals’ autonomy.

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 or the relevant source of risk (e.g., parent/child, teacher/pupil, employer/employee, prison authority/prisoners). A duty may arise to take reasonable steps to prevent harm.

Key Term: Control
A relationship in which the defendant has the power or authority to direct another person or manage a source of danger. Control can found proximity and justify a positive duty to act.

• Assumption of Responsibility: Where the defendant has voluntarily assumed responsibility for the claimant's safety or for taking care to prevent a particular harm, often inducing the claimant’s reasonable reliance.

• Creation or Adoption of Risk: Where the defendant has created a dangerous situation or has ‘adopted’ or continued a danger created by others, a duty to take reasonable steps to mitigate that danger may arise.

• Statutory or Contractual Frameworks: Sometimes a separate legal regime or a contract assumes responsibility to act, and non-performance can generate common law duties consistent with that framework.

Illustrations include:

• A local authority with a discretionary power to improve highway safety does not, by that power alone, owe a duty to road users to exercise it; mere existence of a power does not create a common law obligation (see Stovin v Wise [1996] AC 923).

• A school failed to prevent a child from straying into the road; the control the school exercised over the child’s movements created a positive duty to take reasonable steps to prevent foreseeable harm to others (see Carmarthenshire County Council v Lewis [1955] AC 549).

• Military superiors who took charge of an intoxicated serviceman assumed responsibility to monitor him; the relevant omission was the failure to watch over him after taking control (see Barrett v Ministry of Defence [1995] 1 WLR 1217).

• A landowner who did not start a natural fire but knew of a continuing risk and failed to take reasonable steps to abate it was liable for adopting a danger (see Goldman v Hargrave [1967] 1 AC 645).

In claims against public bodies, the same common-law structures apply: no general duty for a mere failure to confer benefits; positive duties arise where the body has assumed responsibility to an individual or created/controlled a source of risk; and Caparo’s FJR limb allows consideration of policy and statutory context.

Third Party Acts

Similarly, there is no general duty to prevent a third party from causing harm to the claimant. However, the law recognises structured exceptions.

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 that justifies protective steps (e.g., occupier/visitor in specific circumstances; professional adviser/client through an assumption of responsibility).

• Special Relationship between Defendant and Third Party: Where the defendant has control over the third party who causes the harm and should take reasonable steps to prevent foreseeable harm to others (e.g., prison authorities supervising offenders, as in Home Office v Dorset Yacht Co Ltd [1970] AC 1004).

• Creation of a Source of Danger: Where the defendant creates or leaves a dangerous source that is foreseeably interfered with by others (e.g., leaving a lorry unattended with knowledge it could be misused; letting horses bolt and create a hazard, as in Haynes v Harwood [1935] 1 KB 146).

• 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. Conversely, where prior incidents do not put the defendant on notice of the danger, proximity will be lacking (see Smith v Littlewoods Organisation Ltd [1987] AC 241).

Even within these exceptions, claims may still fail on policy grounds. For instance, the House of Lords held it was not fair, just and reasonable to impose a duty on a local authority to warn a tenant of an impending meeting with an anti-social neighbour; no assumption of responsibility was shown, and policy considerations weighed against imposing liability for the neighbour’s criminal acts (see Mitchell v Glasgow City Council [2009] UKHL 11).

Equally important is distinguishing positive acts from omissions. When public authorities, including the police, by positive acts create a foreseeable risk of physical injury to third parties, ordinary principles apply and a duty is likely owed to those foreseeably at risk. Where the complaint is a failure to confer a benefit (an omission), the general rule and exceptions govern. The Supreme Court has reaffirmed that there is no general “immunity” for the police; liability depends on the usual principles and on whether the case involves a positive act or an omission.

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.

Worked Example 1.3

During the arrest of a suspected drug dealer on a busy high street, officers push the suspect, who collides with a passer-by, injuring her. She sues the police in negligence. Is a duty of care owed?

Answer:
Yes. This is a positive act case. The police are subject to ordinary negligence principles when performing operational acts that create a foreseeable risk of physical injury to members of the public in the vicinity. The duty analysis does not depend on Caparo because this is not a novel category and does not concern a pure omission or crime-control immunity. The proximity to the injured bystander is clear, and it is fair, just and reasonable to impose a duty in line with ordinary principles. The issue will then be whether the officers breached the standard of care and whether their acts caused the injury.

Worked Example 1.4

A decorator engaged to work in a client’s home leaves for two hours, failing to lock the front door as requested. A thief enters and steals valuables. Does the decorator’s employer owe a duty?

Answer:
Yes. Although liability for third-party criminal acts is exceptional, a duty arises where the defendant assumes responsibility to take reasonable care to protect the claimant’s property (and the decorator was expressly instructed about securing the premises). The failure to lock the door is a breach of a duty founded on assumption of responsibility, and the employer may be liable for the loss caused by the foreseeably opportunistic theft.

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. In claims involving public bodies, identify whether the complaint concerns a positive act (ordinary principles) or a failure to act (omissions framework). Where an assumption of responsibility or control is shown, proximity is more likely to be established; otherwise, FJR considerations may preclude a duty.

Key Point Checklist

This article has covered the following key knowledge points:

• Duty of care is a question of law and is the first essential element of negligence.
• Many duties are established by precedent (e.g., road users, doctor-patient, employer-employee, manufacturer-consumer, occupier-visitor, professional adviser-client).
• Courts develop duty incrementally. Only resort to Caparo for genuinely novel situations; where authority is analogous, apply it.
• The Caparo test requires reasonable foreseeability, proximity (often through relationships, control or assumption of responsibility), and that it be fair, just and reasonable to impose a duty.
• There is no general duty of care for omissions. Duties to act arise exceptionally where there is control, an assumption of responsibility, or where the defendant created or adopted a risk (including continuing a known danger).
• There is no general duty to prevent harm by third parties. Exceptions arise where there is a special relationship between defendant and claimant, control over the third party, creation of danger, or failure to abate a known danger on one’s property.
• Public body claims follow ordinary principles: positive acts are treated like other defendants; omission-based claims require an assumption of responsibility, control, or creation of danger, and policy (FJR) is carefully weighed.
• Rescuers injured in response to dangers created by a defendant will generally fall within the defendant’s duty where the rescue was a foreseeable consequence of the danger.
• Policy considerations (indeterminate liability, coherence with statutory frameworks, defensive practices, availability of alternative remedies) play a significant role, particularly at the FJR stage and for public bodies.

Key Terms and Concepts

• Duty of care
• Proximity
• Omission
• Third Party Liability
• Assumption of responsibility
• Control
• Fair, just and reasonable