Negligence - Established duties of care

Learning Outcomes

This article explains established duties of care within the tort of negligence, including:

• identifying key relationships where a duty of care is automatically recognised without applying the full Caparo test;
• understanding how the neighbour principle from Donoghue v Stevenson underpins manufacturer–consumer and analogous categories;
• distinguishing clearly between established duty situations and novel duty scenarios that require structured Caparo analysis;
• appreciating when duties are personal and non-delegable, particularly in employer–employee and educator–student contexts;
• applying professional standards (Bolam, Bolitho and Montgomery) to healthcare and other skilled-defendant relationships;
• integrating statutory frameworks such as the Occupiers’ Liability Acts and the Consumer Protection Act 1987 with common-law negligence principles;
• analysing the duty owed to rescuers where a defendant has created a dangerous situation, and the limits of that protection;
• practising the application of duty of care principles to SQE1-style multiple-choice fact patterns, including spotting distractor options;
• developing a structured, exam-ready approach to stating the relevant duty category, explaining its scope, and moving efficiently to breach, causation and defences.

SQE1 Syllabus

For SQE1, you are required to understand when a duty of care is already established by law in negligence, avoiding the need to apply the full Caparo test used for novel duties, and to apply the relevant principles to factual scenarios typical of the assessment, with a focus on the following syllabus points:

• Identifying relationships that give rise to an established duty of care (e.g., doctor-patient, employer-employee).
• Understanding the scope and application of the 'neighbour principle' from Donoghue v Stevenson.
• Distinguishing established duty scenarios from novel duty scenarios where the Caparo test applies.
• Applying the concept of foreseeability within established duty contexts.
• Recognising non-delegable duties in established categories (e.g., employers and schools towards employees/pupils).
• Using statutory premises liability duties alongside negligence (Occupiers’ Liability Act 1957 for visitors; limited duty under the Occupiers’ Liability Act 1984 for trespassers).
• Seeing when professional and skilled-defendant standards apply within established relationships (e.g., Bolam/Bolitho/Montgomery in medical cases).

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 of the following relationships automatically gives rise to an established duty of care in negligence?
   1. Shopkeeper and customer browsing items
   2. Two strangers meeting on a train platform
   3. Employer and employee regarding workplace safety
   4. Neighbour and neighbour regarding noise levels
2. The 'neighbour principle', establishing a general duty of care based on reasonable foreseeability, originates from which landmark case?
   1. Caparo Industries plc v Dickman
   2. Hedley Byrne & Co Ltd v Heller & Partners Ltd
   3. Donoghue v Stevenson
   4. Rylands v Fletcher

3. True or false? When an established duty of care exists, a claimant must still satisfy the full three-stage Caparo test (foreseeability, proximity, fair/just/reasonable) to succeed in negligence.

Introduction

To succeed in a claim for the tort of negligence, a claimant must first establish that the defendant owed them a legal duty of care. This duty requires individuals to exercise reasonable care to avoid causing harm to others. The law recognises certain relationships and situations where such a duty automatically exists without needing detailed judicial analysis in every new case. These are known as established duty situations.

Key Term: negligence
A breach of a legal duty of care owed by one party to another, resulting in damage to the claimant.

Key Term: duty of care
The legal obligation to take reasonable care to avoid causing foreseeable harm to another person.

These established duties often stem from the 'neighbour principle' famously articulated in Donoghue v Stevenson, which requires taking reasonable care to avoid foreseeable injury to those closely and directly affected by one's actions. This contrasts with 'novel' duty situations, where the courts apply the more detailed three-stage test from Caparo Industries plc v Dickman to determine if a duty should be imposed. For SQE1, understanding the scope and application of established duties is critical for analysing common negligence scenarios.

Key Term: neighbour principle
The principle that one must take reasonable care to avoid acts or omissions foreseeably likely to injure those closely and directly affected by one's actions.

Key Term: non-delegable duty
A personal duty of care that cannot be discharged by assigning performance to another; the primary duty-holder remains responsible for ensuring reasonable care is taken (e.g., employer’s duty to employees; school’s duty to pupils).

Key Term: assumption of responsibility
A basis for duty where a defendant undertakes responsibility to safeguard the claimant’s interests, creating proximity beyond ordinary interactions (common in professional services and negligent misstatement contexts).

Established Duty Situations

Case law has identified numerous relationships where a duty of care is automatically recognised. Proving the existence of such a relationship is sufficient to establish the duty element of negligence; the claimant does not need to satisfy the Caparo test in these instances.

Road Users

Drivers of vehicles owe a duty of care to other road users, including other drivers, passengers, pedestrians, and cyclists. This duty requires drivers to exercise reasonable care and skill to avoid causing injury or damage. In practice, courts apply the objective standard of the reasonably competent driver. Breach can be inferred from the circumstances (e.g., collisions following failure to observe basic road priorities). In some settings, res ipsa loquitur may assist claimants where the incident is of a kind that ordinarily does not occur without negligence and the defendant controlled the source of danger. Criminal convictions involving careless or dangerous driving may be admissible in civil proceedings (Civil Evidence Act 1968, s 11), easing proof of breach.

Worked Example 1.1

Ahmed is driving along a main road when Priya, a pedestrian, steps out from behind a parked bus without looking. Ahmed is driving within the speed limit and paying attention but cannot avoid hitting Priya, causing her minor injuries. Does Ahmed owe Priya a duty of care?

Answer:
Yes. Road users owe an established duty of care to other road users, including pedestrians. The existence of the duty is automatic in this relationship. Whether Ahmed breached that duty or whether Priya was contributorily negligent are separate issues relating to breach and defences.

Employers and Employees

Employers owe a duty of care to their employees to take reasonable steps to ensure their safety at work. This established duty covers providing:

• Competent staff
• Adequate plant and equipment
• A safe system of work (including training and supervision)
• A safe place of work

This duty is personal and non-delegable, meaning the employer remains responsible even if tasks are delegated to others, including independent contractors. Breach is assessed against the reasonable employer standard, taking into account foreseeability, practicability of precautions, and seriousness of potential harm.

The Employer’s Liability (Defective Equipment) Act 1969 attributes liability to employers where employees suffer personal injury in the course of employment due wholly or partly to defects in equipment provided for business purposes, even where the defect was caused by a third party. While health and safety regulations are now predominantly enforced criminially, their content remains relevant to assessing civil negligence (post-Enterprise and Regulatory Reform Act 2013).

Worked Example 1.2

A factory worker, Ben, is injured when a machine malfunctions due to a hidden defect. The machine was supplied by the employer, Factory Ltd. Does Factory Ltd owe Ben a duty of care regarding the machine's safety?

Answer:
Yes. Employers owe an established duty of care to their employees to provide safe plant and equipment and a safe system of work. This duty exists regardless of whether the defect was obvious or hidden, although proving breach might depend on foreseeability and reasonableness. Liability may also arise under the Employer’s Liability (Defective Equipment) Act 1969.

Healthcare Professionals and Patients

Doctors, dentists, nurses, and other healthcare professionals owe a duty of care to their patients. This involves exercising the skill and care expected of a reasonably competent professional in their field (the Bolam test), subject to logical analysis of expert opinion (Bolitho refinement). In addition, the duty encompasses the obligation to obtain informed consent by warning patients of material risks (Montgomery v Lanarkshire Health Board), judged by what a reasonable person in the patient’s position would consider significant, and what the clinician knows or ought to know the particular patient would likely attach importance to.

Worked Example 1.3

A consultant obstetrician does not advise a diabetic, small-stature patient of a 9–10% risk of shoulder dystocia in vaginal delivery. The baby suffers hypoxic injury. Does a duty of care exist and has it been breached?

Answer:
The duty of care exists by virtue of the doctor–patient relationship. On breach, Montgomery requires disclosure of material risks; failure to warn of a material risk can breach the duty, even if the clinical treatment itself met Bolam-standard practice.

Manufacturers and Consumers

Manufacturers owe a duty of care to the ultimate consumers of their products to take reasonable care in the design and manufacture process to ensure products are safe for their intended use (Donoghue v Stevenson ‘narrow rule’). This duty exists independently of any contractual relationship with the consumer. A chain of causation may be broken if a reasonably expected intermediary inspection would have revealed the defect but was negligently omitted; however, the default is that manufacturers must contemplate foreseeable end-user harm.

Statutory strict liability under the Consumer Protection Act 1987 operates alongside the common law. Under the CPA, liability for defective products (defined by lack of safety persons generally are entitled to expect) does not require proof of fault, though defences exist (e.g., compliance with legal requirements, defect not present at supply, development risks).

Worked Example 1.4

A food manufacturer supplies sealed jars of sauce. Several jars contain glass fragments due to a production-line error. A consumer suffers a mouth laceration. Is there a duty, and is liability likely?

Answer:
The manufacturer–consumer duty exists under the common law narrow rule. Liability for negligence is likely given foreseeable injury from a product defect. In parallel, strict liability under the CPA 1987 may also arise if the product’s safety fell below what the public are entitled to expect.

Educators and Students

Teachers and educational institutions owe a duty of care to their pupils/students to take reasonable steps to ensure their safety while under the institution’s control. This duty encompasses supervision, risk assessment, safe environments, and appropriate instruction. Schools may also owe a non-delegable duty to ensure reasonable care is taken, even where activities are carried out by independent contractors (for example, outsourced swimming lessons). The standard of care is calibrated to the age and maturity of the pupils; children are less careful than adults, so reasonable steps may be more extensive in child settings.

Worked Example 1.5

A secondary school organises swimming lessons with an external provider. During a lesson, a pupil is injured due to the contractor’s negligent supervision. Does the school owe a duty?

Answer:
Yes. The educator–student duty is established. In many circumstances, the school’s duty will be non-delegable, requiring the school to ensure reasonable care is taken for pupils’ safety by those performing activities on its behalf. The contractor’s negligence may still result in liability for the school.

Occupiers and Lawful Visitors

Occupiers owe lawful visitors a statutory duty of care under the Occupiers’ Liability Act 1957 to take such care as is reasonable to see that visitors are reasonably safe for the purposes permitted. This is an established duty framework that operates alongside negligence. The Act recognises special categories:

• Children: occupiers must be prepared for children to be less careful than adults; allurements may necessitate additional precautions.
• Skilled visitors: occupiers may expect skilled persons to appreciate and guard against risks ordinarily incidental to their calling.

Warnings can discharge the duty if, in all the circumstances, they enable visitors to be reasonably safe. Where work of construction, maintenance or repair is entrusted to competent independent contractors, and reasonable steps are taken to select and oversee them (to the extent appropriate given the complexity), the occupier may not be liable for faulty execution.

By contrast, non-visitors (including trespassers) are dealt with by the Occupiers’ Liability Act 1984, which imposes a narrower duty only where statutory preconditions are met, and only for personal injury (not property damage). This is not an established duty in every case; it depends on the occupier’s knowledge of the danger and the likelihood of trespassers being in its vicinity, and whether protection is reasonably required.

Worked Example 1.6

A visitor trips over a clearly cordoned area with prominent “Wet floor – do not enter” signs while trying to shortcut across the barrier. Is an occupier’s duty owed and is liability likely?

Answer:
A duty is owed under the OLA 1957 to lawful visitors. On breach, adequate warnings and cordons can satisfy the occupier’s duty if they render the visitor reasonably safe; the visitor’s conduct may amount to contributory negligence or fall outside permitted use.

Solicitors and Clients

Solicitors owe their clients a duty of care to exercise reasonable skill and care in providing legal services. This includes accurately advising on law and procedure, managing litigation competently, and avoiding conflicts and undue influence. The duty can overlap with fiduciary obligations (e.g., acting in the client’s best interests, accounting for benefits, protecting client assets) and may also arise through assumption of responsibility in contexts extending beyond formal retainer boundaries.

Rescuers (danger created situations)

Where a defendant creates a dangerous situation, it is reasonably foreseeable that a rescuer might intervene. The defendant owes a duty of care to rescuers acting reasonably to mitigate the danger. This protects both professional and lay rescuers who encounter harm in the course of reasonable rescue attempts.

Worked Example 1.7

A haulage company leaves its lorry unsecured on a gradient. It rolls into a busy street. A passer-by, attempting to stop the lorry and warn others, suffers injury. Is there a duty owed to the rescuer?

Answer:
Yes. The duty is established towards rescuers where the defendant’s negligence creates danger and rescue is a foreseeable response. The passer-by is within the scope of that duty, subject to questions of breach and causation.

Distinguishing from Novel Duties

It is essential for the SQE1 assessment to differentiate established duty situations from novel ones. If a recognised relationship exists (like those listed above), the duty is established, and the analysis moves to breach and causation. The three-stage Caparo test (foreseeability, proximity, fair/just/reasonable) is reserved for situations where the law has not previously recognised a duty of care between parties in those specific circumstances, or where existing duties are limited by policy (e.g., omissions or criminal acts of third parties).

Courts prefer the law to develop incrementally and by analogy with established categories. Caparo is not a universal gateway; it is used where precedents do not clarify the duty question. For example:

• Positive acts by public authorities that cause direct injury are treated within ordinary negligence; a duty is not “novel” merely because the defendant is a public body.
• There is no general duty to act (omissions). Liability for failing to prevent harm caused by third parties is only imposed in defined exceptional circumstances (special relationship, creation of source of danger, assumption of responsibility, or knowledge of a specific, imminent risk requiring reasonable steps).

Recognising the boundary between established and novel duties prevents misapplication of Caparo to categories where duty is already settled.

Key Term: Caparo test
A three-stage approach for novel duty situations: reasonable foreseeability of damage, proximity between claimant and defendant, and whether it is fair, just and reasonable to impose a duty.

Key Point Checklist

This article has covered the following key knowledge points:

• Negligence requires the claimant to establish a duty of care owed by the defendant.
• Established duties of care exist in certain recognised relationships (e.g., road users, doctor-patient, employer-employee, manufacturer-consumer, educator-student, occupier-visitor, solicitor-client).
• The 'neighbour principle' from Donoghue v Stevenson is the basis for many established duties, based on reasonable foreseeability.
• Where an established duty exists, the claimant does not need to prove the three elements of the Caparo test (foreseeability, proximity, fair/just/reasonable), which is primarily for novel duty situations.
• In medical cases, the Bolam/Bolitho standard applies to treatment decisions; Montgomery governs disclosure of material risks.
• Employers owe a non-delegable duty to provide competent staff, adequate plant/equipment, a safe system of work, and safe premises; the Employer’s Liability (Defective Equipment) Act 1969 may attribute liability for defective equipment.
• Occupiers owe lawful visitors a statutory duty under the OLA 1957; duty to trespassers under the OLA 1984 is limited and conditional.
• Manufacturers owe duties to consumers at common law; the CPA 1987 imposes parallel strict liability for defective products.
• Rescuers are owed a duty where rescue is a foreseeable response to danger created by the defendant.
• Properly distinguishing established duties from novel duty situations—particularly where omissions or third-party acts are involved—is essential to structuring negligence analysis.

Key Terms and Concepts

• negligence
• duty of care
• neighbour principle
• non-delegable duty
• assumption of responsibility
• Caparo test