LLAW1005 LAW OF TORT I SEMESTER 1 2023

3. NEGLIGENCE: DUTY OF CARE

Dr Shane Chalmers
19 September 2023
Outline of Lecture

 history of the duty of care

− origins
− breakthrough: Donoghue v Stevenson
− expansion and rival tests

 duty of care after Robinson

− Robinson and the 2018 UKSC cases
− determining the existence of a duty of care
− determining what is “fair, just and reasonable”

 scope of the duty of care

− Caparo, SAAMCO, Meadows v Khan
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Elements of Negligence

 Recognised harm
− (1) Did P suffer harm of a recognised kind?

 Duty of care and scope of duty

− (2) Did D owe P a duty of care?
− (3) Was the harm suffered by P within the scope of the duty owed by D?

 Breach of duty
− (4) Did D breach their duty of care?

 Causation and remoteness

− (5) Did D’s breach cause the harm suffered by P?
− (6) Was the harm too remote? 3
 History of the Duty of Care – Origins

 14th century origins

− negligence-like liability of those in “common callings” (eg, smiths, innkeepers)
− situations giving rise to liability grouped together as “actions on the case”

 19th century turning point

− actions on the case based on negligence became commonplace

 still not quite negligence as we know it

− Heaven v Pender (1883) 11 QBD 503: “whenever one person is by
circumstances placed in such a position with regard to another that everyone of
ordinary sense who did think would at once recognise that if he did not use
ordinary care and skill in his own conduct with regard to those circumstances he
would cause danger or injury to the person or property of the other, a duty arises
to use ordinary care and skill to avoid such danger” (Brett MR) 4
History of the Duty of Care – Breakthrough

 Donoghue v Stevenson [1932] AC 562

− breakthrough with the development of the “neighbour principle”
− Lord Atkin: “You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour”, that is,
“persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions”

 “neighbour principle”
− established new category of duty owed by a manufacturer to a consumer
− made clear the tort of negligence is broad-based and capable of expansion

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History of the Duty of Care – Expansion

 Anns v Merton LBC [1978] AC 728

− emergence of a two-stage test
− Lord Wilberforce: “[T]he position has now been reached that in order to
establish a duty of care … the question has to be approached in two stages.”
− “First, one has to ask whether, as between the alleged wrongdoer and the
person who suffered damage there is a sufficient relationship of proximity or
neighbourhood such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latter, in which
case a prima facie duty of care arises.”
− “Secondly, if the first question is answered affirmatively, it is necessary to
consider whether there are any considerations which ought to negative, or to
reduce or limit the scope of the duty or the class of person to whom it is
owed.” 6
History of the Duty of Care – Rival Tests

 three rival tests in the wake of Anns v Merton

 test in Caparo Industries plc v Dickman [1990] 2 AC 605
− (1) P must be reasonably foreseeable (bearing in mind kind of harm involved)
− (2) there must be a relationship of proximity between P and D
− (3) must be “fair, just and reasonable” in circumstances to impose duty of care

 rival tests
− Murphy v Brentwood DC [1991] 1 AC 398: “It is preferable that the law should
develop novel categories of negligence incrementally and by analogy with
established categories, rather than by a massive extension of a prima facie
duty of care restrained only by indefinable ‘considerations which ought to
negative, or to reduce or limit the scope of the duty’”
− for a third test (!), see Henderson v Merrett [1995] 2 AC 145
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 Duty of Care after Robinson (1)

 Robinson v Chief Constable of West Yorkshire [2018] UKSC 4

− Lord Reed: “The proposition that there is a Caparo test which applies to all
claims in the modern law of negligence, and that in consequence the court will
only impose a duty of care where it considers it fair, just and reasonable to do
so on the particular facts, is mistaken”

 Steel v NRAM [2018] UKSC 13

− Lord Wilson: “[in Caparo Lord Bridge had actually observed] that the concepts
of proximity and fairness were so imprecise as to deprive them of utility as
practical tests; and Lord Oliver… [observed that] to search for a single formula
was to pursue a will-o’-the-wisp… [They also] quoted with approval the remarks
of Brennan J… that it was preferable for the law to develop novel categories of
negligence incrementally and by analogy with established categories.”
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Duty of Care after Robinson (2)

 Darnley v Croydon Health Services NHS Trust [2018] UKSC 50

− Lord Lloyd-Jones: “this jurisdiction has abandoned the search for a general
principle capable of providing a practical test applicable in every situation in
order to determine whether a duty of care is owed… In the absence of such a
universal touchstone, it has taken as a starting point established categories of
specific situations where a duty of care is recognised and it has been willing to
move beyond those situations on an incremental basis, accepting or rejecting
a duty of care in novel situations by analogy with established categories”

 James-Bowen v Commissioner of Police [2018] UKSC 40

− Lord Lloyd-Jones: “As Lord Reed explained in Robinson, in determining
whether such a duty should be recognised the law will proceed incrementally
and by analogy with previous decisions.”
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Determining the Existence of a Duty – General

 after Robinson the favoured approach is the incremental approach

 general enquiry
− is the fact pattern (materially) the same as one that has been dealt with before?
− if a duty existed in the previous (materially same) fact scenario, then there is
most likely a duty on these facts
− if a duty was not held to exist in the previous (materially same) fact scenario,
then most likely there is no duty on these facts
− note: this is not a “test”, but simply common law reasoning by analogy

 two exceptions to the general enquiry

− (1) if a party wants to overturn a previous decision
− (2) if the facts are novel and there is no precedent to follow
− in these situations, look at what is “fair, just and reasonable”
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 Determining the Existence of a Duty – Exceptions

 Robinson case
− (1): “Where the existence or nonexistence of a duty of care has been
established, a consideration of justice and reasonableness forms part of the
basis on which the law has arrived at the relevant principles. It is therefore
unnecessary and inappropriate to reconsider whether the existence of the duty
is fair, just and reasonable (subject to the possibility that this court may be
invited to depart from an established line of authority).”
− (2): “It is normally only in a novel type of case, where established principles do
not provide an answer, that the courts need to go beyond those principles in
order to decide whether a duty of care should be recognised… The courts also
have to exercise judgement when deciding whether a duty of care should be
recognised in a novel type of case. It is the exercise of judgement in those
circumstances that involves consideration of what is ‘fair, just and reasonable’”.
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“Fair, Just and Reasonable” (1)

 determining what is “fair, just and reasonable”

− in the two exceptional situations = use third part of the Caparo test + policy
considerations under the Anns test
− whether it is “fair, just, reasonable” in circumstances to impose duty (Caparo)
− whether there are “any considerations which ought to negative, or to reduce or
limit the scope of the duty or the class of person to whom it is owed” (Anns)

 main policy considerations

− whether certain areas of activity (eg, work of public authorities like police)
warrant the imposition of a duty of care
− whether the risk of certain kinds of harm (eg, economic loss and psychiatric
harm) can rightly be addressed by the law of negligence
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“Fair, Just and Reasonable” (2)

 negative uses of “fair, just and reasonable”

− Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211

 positive uses of “fair, just and reasonable”

− White v Jones [1995] 2 AC 207
− Luen Hing Fat Coating & Finishing v Waan Chuen Ming (2011) HKCFAR 14

 rare
− note, policy-based judgments will be very rare after Robinson
− take care with cases that you encounter in textbooks dealing with policy
reasoning in relation to public authorities – they may now be regarded as
wrongly reasoned
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Elements of Negligence

 Recognised harm
− (1) Did P suffer harm of a recognised kind?

 Duty of care and scope of duty

− (2) Did D owe P a duty of care?
− (3) Was the harm suffered by P within the scope of the duty owed by D?

 Breach of duty
− (4) Did D breach their duty of care?

 Causation and remoteness

− (5) Did D’s breach cause the harm suffered by P?
− (6) Was the harm too remote? 14
Scope of the Duty of Care

 Caparo Industries plc v Dickman [1990] 2 AC 605

− Lord Bridge: “It is never sufficient simply to ask whether A owes B a duty of
care. It is always necessary to determine the scope of the duty by reference
to the kind of damage from which A must take care to hold B harmless”

 SA Asset Management Corp v York Montagu Ltd [1997] AC 191

− Lord Hoffman: “The injury has not been caused by the doctor’s bad advice
because it would have occurred even if the advice had been correct.”

 Meadows v Khan [2021] UKSC 21

− Lords Hodge and Sales: “the law did not impose on Dr Khan any duty in
relation to unrelated risks which might arise in any pregnancy.”
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