NEGLIGENCE: DUTY OF CARE (originally by Lord Atkin, Donoghue v Stevenson (1932) – ‘the neighbour principle’)
Concept: “We must take reasonable care to avoid acts or omissions which we can RF would be likely to injure our neighbour”
Purpose of DOC concept: as a control device - to determine if is justified to transfer Cl.’s loss to D – whether D should bear loss instead of Cl.
1. Does D owe Cl. a legal DOC? If facts involve: 2. 3 ways to determine DOC: CEC v Barclays Bank [2006]
rd
(a) psychiatric injury/PEL/public bodies/omissions/3 party wrongdoing? (see respective chart); (i) incremental approach
(b) if none of the above (general negligence) – ordinary DOC principles apply (ii) Caparo 3-stage test; or
(iii) assumption of responsibility approach
(i) Incremental Approach:
(ii) Caparo Test: 3 Criteria for DOC – Cl. must satisfy that: (iii) Assumption of
“…the law should develop … incrementally and by Responsibility
analogy with established cases.” Lord Bridge, (a) Damage/injury was reasonably foreseeable:
Caparo. •Langley v Dray (1998): RF that reckless driving (escaping arrest), is dangerous to other road users Recognized in CEC v
•Haley v London Electricity Board (1965): RF that a blind person too might be present at the place of harm – taking BB (2006) –
Under this approach – look at whether facts are precaution adequate only for those who are not blind is not sufficient
similar to a decided case/ fall within a category of • Bourhill v Young (1943): Cl. not within scope of foreseeable victims – too far removed from scene of accident – Usually used in PEL,
established duty. did not witness crash – only arrived to see the aftermath on her own later public bodies,
omissions, acts of
If yes, DOC is owed in the present case. If not, the (b) Sufficient proximity between D & Cl.: rd
3 Parties, and in
case is considered novel (no previously •Watson v British Boxing Board of Control (2000): boxers are closely & directly affected by B. Board
some psych. Injury
•Sutradhar v Natural Environment Research Council (2004): NERC had a different purpose in studying water
established duty in such case) claims.
systems – Cl. did not share a close nexus with NERC, he was not the subject or purpose of their work
Latest Development (Supreme Ct.): Case examples:
(iii) Just, Fair & Reasonable to impose DOC (policy consideration on whether DOC should be imposed):
Robinson v CC of WYP; Hedley Byrne v
•McFarlane v Tayside HB (1999): X J, F & R to impose DOC on Health Board for negligent advice resulting in
Steel v NRAM (2018) unwanted pregnancy – against public policy and morally offensive to consider healthy baby a burden Heller (1964)
“…ordinarily, Cts. consider what has been decided • Marc Rich v Bishop Rock Marin (1995): to impose legal DOC on a marine classification society (independent, not White v Jones
previously and follow precedents. In cases where profit-making body) for advice given to ship owners is contrary to public policy – not J, F & R – such bodies will (1995)
the question of duty has not previously been become unduly defensive and reluctant to provide advisory service Reeves v MPC
decided, the Cts. will consider the closest •Caparo v Dickman (1991): undesirable to impose DOC under common law contrary to statute - statute has already (1999)
analogies in existing law…It is not laid down the duties of a company auditor contrary common law will not interfere H.O. v Dorsett
necessary/appropriate to resort to Caparo in •Chadwick v British Railways Board (1967): it is in the interest of justice that DOC is imposed in favour of those Yacht (1970)
every case … the Ct. will resort to Caparo only who effect rescue – encouraging ‘Good Samaritans’ Kent v Griffiths
where it is invited to depart from previous • Darnley v Croydon HS NHST (2017): no DOC on hospital receptionist to accurately state waiting time in [2000]
authority.” emergency dept. – DOC would lead to excessive claims against NHS – unreasonable W v Essex CC
[2001]
Examples of established duty: doctor & patient, NOTE: After Robinson & Steel (SC) (2018) – Caparo test may be limited to exceptional cases
employer & employee, road users, barrister & NOTE: In Woodland v Essex CC (2013) – D held to owe a DOC on the basis that legal responsibility remains with D
client (Moy v Pettman-Smith (2005)) even though D has delegated the task of teaching swimming to an IC – SC applied principle of non-delegable duty
based on Lord Sumptions’s 5 criteria
Concept: “We must take reasonable care to avoid acts or omissions which we can RF would be likely to injure our neighbour”
Purpose of DOC concept: as a control device - to determine if is justified to transfer Cl.’s loss to D – whether D should bear loss instead of Cl.
1. Does D owe Cl. a legal DOC? If facts involve: 2. 3 ways to determine DOC: CEC v Barclays Bank [2006]
rd
(a) psychiatric injury/PEL/public bodies/omissions/3 party wrongdoing? (see respective chart); (i) incremental approach
(b) if none of the above (general negligence) – ordinary DOC principles apply (ii) Caparo 3-stage test; or
(iii) assumption of responsibility approach
(i) Incremental Approach:
(ii) Caparo Test: 3 Criteria for DOC – Cl. must satisfy that: (iii) Assumption of
“…the law should develop … incrementally and by Responsibility
analogy with established cases.” Lord Bridge, (a) Damage/injury was reasonably foreseeable:
Caparo. •Langley v Dray (1998): RF that reckless driving (escaping arrest), is dangerous to other road users Recognized in CEC v
•Haley v London Electricity Board (1965): RF that a blind person too might be present at the place of harm – taking BB (2006) –
Under this approach – look at whether facts are precaution adequate only for those who are not blind is not sufficient
similar to a decided case/ fall within a category of • Bourhill v Young (1943): Cl. not within scope of foreseeable victims – too far removed from scene of accident – Usually used in PEL,
established duty. did not witness crash – only arrived to see the aftermath on her own later public bodies,
omissions, acts of
If yes, DOC is owed in the present case. If not, the (b) Sufficient proximity between D & Cl.: rd
3 Parties, and in
case is considered novel (no previously •Watson v British Boxing Board of Control (2000): boxers are closely & directly affected by B. Board
some psych. Injury
•Sutradhar v Natural Environment Research Council (2004): NERC had a different purpose in studying water
established duty in such case) claims.
systems – Cl. did not share a close nexus with NERC, he was not the subject or purpose of their work
Latest Development (Supreme Ct.): Case examples:
(iii) Just, Fair & Reasonable to impose DOC (policy consideration on whether DOC should be imposed):
Robinson v CC of WYP; Hedley Byrne v
•McFarlane v Tayside HB (1999): X J, F & R to impose DOC on Health Board for negligent advice resulting in
Steel v NRAM (2018) unwanted pregnancy – against public policy and morally offensive to consider healthy baby a burden Heller (1964)
“…ordinarily, Cts. consider what has been decided • Marc Rich v Bishop Rock Marin (1995): to impose legal DOC on a marine classification society (independent, not White v Jones
previously and follow precedents. In cases where profit-making body) for advice given to ship owners is contrary to public policy – not J, F & R – such bodies will (1995)
the question of duty has not previously been become unduly defensive and reluctant to provide advisory service Reeves v MPC
decided, the Cts. will consider the closest •Caparo v Dickman (1991): undesirable to impose DOC under common law contrary to statute - statute has already (1999)
analogies in existing law…It is not laid down the duties of a company auditor contrary common law will not interfere H.O. v Dorsett
necessary/appropriate to resort to Caparo in •Chadwick v British Railways Board (1967): it is in the interest of justice that DOC is imposed in favour of those Yacht (1970)
every case … the Ct. will resort to Caparo only who effect rescue – encouraging ‘Good Samaritans’ Kent v Griffiths
where it is invited to depart from previous • Darnley v Croydon HS NHST (2017): no DOC on hospital receptionist to accurately state waiting time in [2000]
authority.” emergency dept. – DOC would lead to excessive claims against NHS – unreasonable W v Essex CC
[2001]
Examples of established duty: doctor & patient, NOTE: After Robinson & Steel (SC) (2018) – Caparo test may be limited to exceptional cases
employer & employee, road users, barrister & NOTE: In Woodland v Essex CC (2013) – D held to owe a DOC on the basis that legal responsibility remains with D
client (Moy v Pettman-Smith (2005)) even though D has delegated the task of teaching swimming to an IC – SC applied principle of non-delegable duty
based on Lord Sumptions’s 5 criteria
