The Development of A Duty of Care
Before a claimant can succeed in a negligence claim, they must prove that the defendant owed them a duty of care. A duty of care is a legal relationship between the claimant and defendant which means that the defendant is required to take reasonable care to avoid causing foreseeable harm to the claimant.
The law relating to duty of care has developed significantly over time. Originally, there was no general duty of care owed to everyone. Instead, duties were recognised only in particular situations. Over time, the courts developed a more general approach, beginning with the famous neighbour principle in Donoghue v Stevenson and eventually developing the modern approach found in Robinson v Chief Constable of West Yorkshire Police.
Lets explore how the law upon a duty of care has developed through key case law.
Winterbottom v Wright (1842): No General Duty of Care
In the nineteenth century, the courts did not recognise a general duty of care. A defendant would only owe a duty of care in a limited number of situations, eg a duty of care that was created by a contract.
The case of Winterbottom v Wright (1842) demonstrates this early approach. Winterbottom was a coach driver who was injured when a defective coach broke down. The coach had been supplied by Wright under a contract with the Postmaster General. Winterbottom was not a party to this contract.
Winterbottom attempted to claim compensation from Wright for his injuries. However, the court decided that Wright did not owe Winterbottom a duty of care because there was no contract between them. The courts were concerned that allowing claims from anyone who was indirectly affected by a defendant's actions could result in unlimited liability.
The principle from Winterbottom v Wright was therefore that there was no general duty of care owed to everyone who might be affected by a defendant's actions. A duty usually had to arise from a recognised legal relationship, such as a contract.
This restrictive approach eventually changed with the development of the neighbour principle
Donoghue v Stevenson (1932): The Neighbour Principle
One of the most important cases in the development of negligence is Donoghue v Stevenson (1932). This case established the neighbour principle, which formed the foundation of the modern law of negligence.
Mrs Donoghue went to a café with a friend who bought her a bottle of ginger beer. The bottle was made of dark glass, so it was impossible to see whether there was anything inside it. Mrs Donoghue drank some of the ginger beer and then poured the remainder into a glass. She discovered that the bottle contained a decomposed snail. She became ill and suffered shock and gastroenteritis.
Mrs Donoghue had not purchased the drink herself, meaning there was no contract between her and the manufacturer, Mr Stevenson. She therefore brought her claim in negligence.
The House of Lords decided that Stevenson could owe Mrs Donoghue a duty of care even though they had no contract with each other. Lord Atkin developed the neighbour principle. He stated that people must take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure their neighbours. A neighbour does not simply mean someone who lives next door. In law, it means someone who is closely and directly affected by the defendant's actions that the defendant should reasonably have them in contemplation.
The case therefore established a general duty of care based largely on reasonable foreseeability. It represented a major development from the restrictive approach in Winterbottom v Wright.
Home Office v Dorset Yacht (1970): Expansion of Donoghue v Stevenson and the Neighbour Principle
The courts continued to develop the duty of care following Donoghue v Stevenson. In Home Office v Dorset Yacht (1970), the courts considered whether a duty of care could exist where the defendant had control over a situation involving third parties.
A group of young offenders were being supervised by officers from the Home Office on an island. Seven of the boys escaped from the detention centre because the officers failed to properly supervise them. The boys then boarded a yacht owned by Dorset Yacht Company and caused significant damage to it.
Dorset Yacht Company brought a claim against the Home Office. The Home Office argued that it should not be responsible for the actions of the escaped boys.
The House of Lords decided that a duty of care could exist. The officers had control over the young offenders, and it was reasonably foreseeable that if the boys escaped, they could cause damage to nearby property.
The case therefore demonstrated that a duty of care could arise where there was control over a third party and the harm was reasonably foreseeable.
Home Office v Dorset Yacht was important because it showed that the neighbour principle could be applied to situations beyond the straightforward manufacturer to consumer
relationship found in Donoghue v Stevenson.
Anns v Merton London Borough Council (1978): The Two Stage Test
The development of the law continued in Anns v Merton London Borough Council (1978).
This case introduced a more structured approach to deciding whether a duty of care existed.
The claim involved a block of flats which had been built with inadequate foundations. The foundations were not deep enough, and the building subsequently developed cracks and other damage. The occupants claimed that the local authority had been negligent in failing to properly inspect the foundations.
The House of Lords developed a two stage test for establishing a duty of care.
The first stage asked whether there was reasonable foreseeability of harm and a sufficient relationship of proximity between the claimant and defendant.
If the answer was yes, the second stage asked whether there were any policy considerations which meant that the court should nevertheless decide that a duty of care should not be imposed.
The Anns test therefore consisted of:
Was the damage reasonably foreseeable and was there sufficient proximity between the claimant and defendant?
Are there any policy reasons why a duty should not be imposed?
The Anns approach initially made it easier for claimants to establish a duty of care. However, the courts became concerned that it had expanded the law of negligence too far and could result in defendants facing liability for a very wide range of harm.
The Anns approach was therefore later replaced by the more restrictive test developed in Caparo v Dickman.
Caparo v Dickman (1990): The Three Stage Test
The leading case traditionally associated with the development of the three-stage test is Caparo Industries plc v Dickman (1990).
Caparo was considering whether to purchase shares in Fidelity plc. Fidelity's accounts had been audited by Dickman, an accountant working for the company. The accounts showed that Fidelity was performing better financially than it actually was. Caparo relied on the accounts when purchasing additional shares and later discovered that the company's financial position was much worse than expected. Caparo attempted to sue the auditors for negligence.
The House of Lords decided that the auditors did not owe Caparo a duty of care. The purpose of the accounts was to allow the company's shareholders to make decisions about the company's management, rather than to allow potential investors to decide whether to purchase shares.
The court developed a three stage test for establishing a duty of care in novel situations.
Firstly, the harm must have been reasonably foreseeable. This means that a reasonable person should have been able to predict that their actions could cause harm to the claimant.
Secondly, there must be a relationship of proximity between the claimant and defendant. Proximity means that there must be a sufficiently close relationship between them. This can involve physical, geographical, circumstantial or other forms of closeness.
Thirdly, it must be fair, just and reasonable to impose a duty of care. This allows the courts to consider wider policy issues and whether imposing liability would be appropriate.
The Caparo test restricted the development of negligence compared with Anns. However, it is important to understand that Caparo was not intended to be a universal test which automatically has to be applied in every negligence claim.
The Caparo test can be summarised as:
Was the harm foreseeable? Would a reasonable person in the defendant’s position foresee that the claimant might be injured
Was there proximity (a close relationship in terms of space, time or relationship) between the claimant and defendant?
Is it fair, just and reasonable to impose a duty of care?
Robinson v Chief Constable of West Yorkshire Police (2018): The Modern Approach
The modern approach to establishing a duty of care was clarified by the Supreme Court in Robinson v Chief Constable of West Yorkshire Police (2018).
Mrs Robinson was an elderly woman who was walking along a street when two police officers attempted to arrest a suspected drug dealer. During the struggle, the suspect and the police officers collided with Mrs Robinson, causing her to fall and suffer injuries.
Mrs Robinson brought a negligence claim against the police. The police argued that they did not owe her a duty of care because the police generally have immunity from negligence claims relating to their activities in investigating and preventing crime.
The Supreme Court decided that the police did owe Mrs Robinson a duty of care. The important point was that this was an ordinary case of the police officers' actions directly causing foreseeable physical injury to another person. Existing principles of negligence could therefore be applied.
The Supreme Court also clarified an important point about the Caparo test. There is no single universal test for deciding whether a duty of care exists.
Instead, the courts should first consider whether the situation falls within an existing and established duty of care. If it does, the court should apply the existing precedent rather than automatically applying the Caparo three stage test.
For example, the law already recognises that drivers owe duties of care to other road users and that doctors can owe duties of care to their patients. There is no need to reinvent the law every time a claim is brought within one of these established categories.
Where a case involves a novel situation, meaning a situation where the law has not previously established whether a duty exists, the courts can develop the law incrementally.
This means that the court considers whether the new situation is sufficiently similar to an existing situation where a duty of care has already been recognised. This is sometimes described as establishing an analogous duty.
The courts can also consider the policy factors contained within the Caparo approach, particularly whether imposing a duty would be appropriate and consistent with the development of the law.
The courts will now use the approach set in Robinson to decide if a duty of care exists:
There is no single universal test for deciding whether a duty of care exists.
First the courts will try to establish a duty by applying existing duties (precedent or statute).
For novel cases the courts will develop the law incrementally using analogous duties and policy considerations in Caparo v Dickman (1990).
A Summary of the Development of a Duty of Care
The development of the law can therefore be seen as a movement from a very restrictive approach towards a general duty of care and then towards a more controlled method of developing new duties.
In Winterbottom v Wright, there was no general duty of care and liability was largely restricted to recognised legal relationships such as contracts. Donoghue v Stevenson transformed the law by introducing the neighbour principle and recognising a general duty based on reasonable foreseeability.
Home Office v Dorset Yacht demonstrated that duties could arise where the defendant had control over a third party and harm was reasonably foreseeable.
Anns v Merton LBC then introduced a two stage test based on foreseeability, proximity and policy considerations.
However, because the Anns approach was considered to have expanded negligence too far, Caparo v Dickman introduced the familiar three stage approach of foreseeability, proximity and whether it is fair, just and reasonable to impose a duty.
Finally, Robinson v Chief Constable of West Yorkshire Police clarified the modern position. The courts should not automatically apply the Caparo test to every case. Instead, they should first look for an existing duty of care. If no existing duty applies, the courts should develop the law incrementally, using similar existing cases and, where appropriate, the policy considerations associated with Caparo.
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