Negligence: duty of care

To conclude, negligence is the tort action which sees most litigation and for that reason can be described as the most important tort. It’s relatively new, having developed extensively in the 19th century when the Industrial Revolution saw a dramatic increase in urban living in close proximity, working in dangerous conditions and travelling by faster forms of transport such as the railways. All these changes brought with them increased risk of injury and death caused by fault, or carelessness.

Social attitudes began to recognise the need to adequately compensate victims of this progress and so both case law and legislation began to develop mechanisms to do so.

The three elements are:

  • Duty: that is, a duty must be owed by the claimant to the defendant in respect of the relevant loss or injury and
  • Two: breach of duty: the defendant must act carelessly or carelessly omit to do something and
  • Thirdly: causation: the breach of duty must cause damage of a reasonably foreseeable and legally recognised type.

All three of these must be proved by the claimant. The existence of these elements provides a means of defining and limiting the law of negligence. This is particularly true of duty of care, which is the element bringing with it the most challenging policy issues. By ‘policy’, we mean the non-legal factors, ethical, political, financial etc. which may influence judges’ decision-making.

In this chapter you learned to follow the general tests to determine duty of care, beginning with the famous neighbour principle in Donoghue v Stevenson in 1932, where the criteria of foreseeability and proximity were established. The current test for duty of care was established in Caparo Industries v Dickman in 1990, in Lord Bridge’s three-part test requiring that damage must be foreseeable, proximate, and that be fair just and reasonable to impose a duty on the defendant. In routine negligence cases involving physical injury or property damage it is not necessary to apply the Caparo test for duty. This was reiterated in Robinson v Chief Constable of West Yorkshire in 2018: that the Caparo test is only required in novel, or new, cases.

It was important to note the situations where a duty of care cannot be assumed - notably where the defendant is a public body, as in X v Bedfordhsire Council in 1995, as well as where the damage has come about due to an omission as in Stovin v Wise in 1996. In both these situations, policy factors become influential, as is seen in the case study example of police liability.

Having determined that the law will recognise a duty of care in this type of situation; it is must also be determined whether the defendant owed a duty to this claimant, as in Palsgraf v Long Island Railway.

Duty of care, then, is a limiting device the tests for which only need to be applied in novel fact situations. Remember that the establishment of a duty of care is not equivalent to liability because the other two elements must also be addressed.