Negligence - Novel duties of care (Donoghue v Stevenson and Caparo test)

Learning Outcomes

After studying this article, you will be able to explain how English law determines whether a duty of care exists in new negligence scenarios, including the significance of the neighbour principle from Donoghue v Stevenson and the Caparo three-stage test. You will be able to identify and apply the requirements of foreseeability, proximity, and the fair, just, and reasonable test to novel duty situations, and recognise the role of policy in limiting liability.

SQE1 Syllabus

For SQE1, you are required to understand how the courts establish a duty of care in negligence, especially in situations where there is no established precedent. In your revision, focus on:

• the neighbour principle from Donoghue v Stevenson and its application to duty of care
• the Caparo three-stage test: foreseeability, proximity, and fair, just and reasonable
• how policy factors influence the imposition of new duties of care
• the distinction between established and novel duty situations
• how to apply these principles to factual scenarios in SQE1-style questions

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. What are the three requirements of the Caparo test for establishing a duty of care in a novel negligence situation?
2. What is the neighbour principle, and which case established it?
3. In what circumstances will the courts refuse to impose a duty of care in a new situation, even if harm is foreseeable?
4. True or false? If a claimant falls within an established duty situation, the Caparo test must still be applied.

Introduction

Negligence is the most frequently examined tort in SQE1. The first step in any negligence claim is to establish that the defendant owed the claimant a duty of care. In many situations, the existence of a duty is well established (such as between road users or doctor and patient). However, when a claim arises in a new context, the courts must decide whether to recognise a novel duty of care. This article explains how the courts approach this question, focusing on the neighbour principle from Donoghue v Stevenson and the Caparo three-stage test.

Established and Novel Duties of Care

English law distinguishes between established duty situations and novel duty situations.

• Established duty situations are relationships where the courts have already recognised a duty of care exists (e.g., driver to pedestrian, employer to employee, manufacturer to consumer).
• Novel duty situations arise when the courts are asked to decide for the first time whether a duty of care should be imposed in a new context.

Key Term: duty of care A legal obligation requiring a person to take reasonable care to avoid causing foreseeable harm to others.

The Neighbour Principle: Donoghue v Stevenson

The modern law of negligence began with Donoghue v Stevenson [1932] AC 562. In this case, Mrs Donoghue became ill after drinking ginger beer containing a decomposed snail. She sued the manufacturer, even though she had no contract with them.

Lord Atkin set out the neighbour principle:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."

Key Term: neighbour principle The idea that a person owes a duty of care to those who are so closely and directly affected by their actions that they ought reasonably to have them in contemplation.

This principle introduced the concepts of foreseeability and proximity as the basis for imposing a duty of care beyond contractual relationships.

Key Term: foreseeability The ability to predict that one's actions may cause harm to another person in the circumstances.

Key Term: proximity The closeness of the relationship (not just physical) between the claimant and defendant, making it fair to impose a duty of care.

The Caparo Three-Stage Test

While the neighbour principle was a major step forward, the courts needed a more structured approach for new situations. This was provided by Caparo Industries plc v Dickman [1990] 2 AC 605.

The Caparo test requires three elements to be satisfied before a duty of care will be imposed in a novel situation:

1. Foreseeability of harm – Was it reasonably foreseeable that the defendant’s conduct could cause harm to the claimant?
2. Proximity of relationship – Was there a sufficiently close relationship between the claimant and defendant?
3. Fair, just and reasonable – Is it fair, just and reasonable to impose a duty of care in the circumstances?

Key Term: Caparo test The three-stage approach for establishing a duty of care in novel negligence cases: foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty.

Applying the Caparo Test

The Caparo test is only used where there is no established duty situation. If the relationship is already recognised by the courts, there is no need to apply Caparo.

• Foreseeability: Would a reasonable person in the defendant’s position have foreseen that their actions could cause harm to the claimant?
• Proximity: Is there a close and direct relationship between the parties?
• Fair, just and reasonable: Are there policy reasons (such as avoiding unlimited liability or protecting public bodies) that mean a duty should not be imposed?

Worked Example 1.1

A social media company launches a new app. Due to a coding error, users’ private data is leaked online. A user sues the company for distress and financial loss.

Question: Should the court impose a duty of care on the company to the user?

Answer: The court would apply the Caparo test. Harm from a data breach is foreseeable. There is proximity because the user provided data to the company. It is likely fair, just and reasonable to impose a duty, as companies are expected to protect user data. A duty of care would probably be recognised.

Worked Example 1.2

A local council fails to grit a rarely used rural road during icy weather. A driver skids and is injured. There is no established duty for councils to grit every road.

Question: Will the court impose a duty of care?

Answer: The court would apply the Caparo test. Harm is foreseeable, but proximity may be weak if the road is rarely used. Policy reasons (such as limited resources and the risk of opening the floodgates to claims) may mean it is not fair, just and reasonable to impose a duty. The claim may fail on the third limb.

Policy Factors and Limiting Liability

The third limb of the Caparo test allows the courts to consider public policy. Even if harm is foreseeable and there is proximity, the courts may refuse to impose a duty if it would not be fair, just and reasonable. Common policy reasons include:

• Avoiding unlimited or indeterminate liability
• Protecting public bodies from excessive claims
• Ensuring that imposing a duty does not hinder socially desirable activities

Exam Warning

The Caparo test is only used in novel situations. If the facts fall within an established duty category (e.g., road users), do not apply Caparo in your answer—simply state that a duty exists.

Revision Tip

In SQE1 questions, always identify whether the scenario is an established or novel duty situation before deciding whether to apply the Caparo test.

Summary Table: Established vs Novel Duty Situations

Key Point Checklist

This article has covered the following key knowledge points:

• The distinction between established and novel duty of care situations in negligence
• The neighbour principle from Donoghue v Stevenson and its focus on foreseeability and proximity
• The Caparo three-stage test: foreseeability, proximity, and fair, just and reasonable
• The role of policy factors in limiting the imposition of new duties of care
• The Caparo test is only used where there is no established duty situation

Key Terms and Concepts

• duty of care
• neighbour principle
• foreseeability
• proximity
• Caparo test