LAW OF NEGLIGENCE: DUTY OF CARE, STANDARD OF CARE, AND BREACH OF THE
DUTY OF CARE
1. Duty of care for Negligent acts.
The tort of negligence states that a reasonable person who causes another person's loss or
injury by failing to take reasonable care should provide compensation.
Three key issues determine negligence action
The defendant must owe a duty of care to the plaintiff;
The defendant must breach the duty of care; and
The defendant's acts or omissions must cause the harm/injury.
To determine whether a duty of care is owed, two approaches are used: the Historical
approach and the contemporary approach1. Using these two approaches, the duty of care can
easily be established. However, in this essay, our focus will be on the Historical approach
using various landmark case laws using the FILAC method to establish the facts, issues,
law/principles established, their application, and conclusions.
The established historical test to identify a duty of care for negligence is Donoghue v
Stevenson [1932] AC 562. In this case, the manufacturer of the ginger beer did owe the
plaintiff a duty of care, and because of the snail in the bottle, the plaintiff suffered “nervous
shock and severe gastro-enteritis”, the defendant should respond to this negligence act and
recover compensation. It also stated the two components of the duty of care, “reasonable
foreseeability” and “proximity”. This led to the implementation of the “Neighbour
principle2 The principle requires that you take reasonable care to avoid foreseeable harm to
those who could be injured by your acts or omissions.
Another similar case to Donoghue v Stevenson was the Anns v Merton London Borough
Council [1977], which led to the development of another principle in determining negligent
liability known as the Anns Two-stage principle. The facts of the case were as follows: The
claimants were lessees (tenants) of a block of flats in Merton, London. The defendant was the
Merton London Borough Council. The flats developed structural defects, including cracks,
because their foundations were built only 2 feet 6 inches deep, rather than the required 3 feet
as specified in the approved plans. The tenants sued the Council, arguing that the local
authority was negligent in its duty to inspect the foundations during construction, or in
approving the plans despite the non-compliance.3
Holding: The House of Lords (the highest court in the UK at the time) held that the Council
did owe a duty of care to the claimants to ensure the foundations were at the correct depth.
1
Pentony, Graw, Lennard & Parker, 2008
2
Donoghue v Stevenson [1932] AC 562.
3
Anns v Merton London Borough Council [1977]
, However, these two revolutionary cases were considered too rigid and often limited the
scope of liability, primarily limiting claims to situations where a direct contractual
relationship existed. To expand and broaden the scope of liability, another principle, “The
Caparo test/Tripartite test,” was born in the Caparo v Dickman [1990] 2 AC 605,
whereby the plaintiffs bought shares in a company based on audited accounts that
incorrectly showed a profit, but the company was actually in serious financial trouble.
The plaintiffs sued the auditors, arguing they had a duty of care to ensure the accounts
were accurate.
The House of Lords' decision: The House of Lords ruled that the auditors did not
owe a duty of care to the shareholders in this specific situation because the accounts
were prepared for the shareholders as a whole, not for an individual investor making a
purchase.4
The three tests were as follows;
Foreseeability: The claimant must show that it was reasonably foreseeable that their
harm would result from the defendant's actions.
Proximity: There must be a relationship of sufficient proximity between the claimant
and the defendant.
Fair, just, and reasonable: It must be fair, just, and reasonable in the circumstances
for a duty of care to be imposed on the defendant.
2. Standard of Care
Once the facts of the case confirm that the defendant owes the plaintiff a duty of care, it does
not mean the defendant's action results in damage or loss. Therefore, the plaintiff needs to
provide more evidence to prove their statements. Hence, the next step is considering the
second essential of negligence, breach of the Standard of Care. Richards, Ludlow, and
Gibson (2009) summarized that to determine the breach of the Standard of Care, there are
two issues to consider:5
the extent of foreseeable risk created by the defendant's conduct;
the reasonableness or otherwise of the defendant's response to that risk.
The standard of care is determined by comparing a notional reasonable person's actions or
omissions with the defendant's conduct in the same circumstances. The “reasonable person”
is not a specific or real person. It is an imaginary benchmark or device used by the courts6
Accordingly, the reasonable person should examine the two attributes. Firstly, there is a
presumption of average intelligence, which is used to test the defendant's intelligence7. If the
defendant’s intelligence is higher than the average level, then this person is not judged
4
Caparo v Dickman [1990] 2 AC 605
5
Richards, Ludlow, and Gibson (2009)
6
Sappideen, Vines, &Watson, 2009
7
Bagaric, Faris & Carter, 2011
DUTY OF CARE
1. Duty of care for Negligent acts.
The tort of negligence states that a reasonable person who causes another person's loss or
injury by failing to take reasonable care should provide compensation.
Three key issues determine negligence action
The defendant must owe a duty of care to the plaintiff;
The defendant must breach the duty of care; and
The defendant's acts or omissions must cause the harm/injury.
To determine whether a duty of care is owed, two approaches are used: the Historical
approach and the contemporary approach1. Using these two approaches, the duty of care can
easily be established. However, in this essay, our focus will be on the Historical approach
using various landmark case laws using the FILAC method to establish the facts, issues,
law/principles established, their application, and conclusions.
The established historical test to identify a duty of care for negligence is Donoghue v
Stevenson [1932] AC 562. In this case, the manufacturer of the ginger beer did owe the
plaintiff a duty of care, and because of the snail in the bottle, the plaintiff suffered “nervous
shock and severe gastro-enteritis”, the defendant should respond to this negligence act and
recover compensation. It also stated the two components of the duty of care, “reasonable
foreseeability” and “proximity”. This led to the implementation of the “Neighbour
principle2 The principle requires that you take reasonable care to avoid foreseeable harm to
those who could be injured by your acts or omissions.
Another similar case to Donoghue v Stevenson was the Anns v Merton London Borough
Council [1977], which led to the development of another principle in determining negligent
liability known as the Anns Two-stage principle. The facts of the case were as follows: The
claimants were lessees (tenants) of a block of flats in Merton, London. The defendant was the
Merton London Borough Council. The flats developed structural defects, including cracks,
because their foundations were built only 2 feet 6 inches deep, rather than the required 3 feet
as specified in the approved plans. The tenants sued the Council, arguing that the local
authority was negligent in its duty to inspect the foundations during construction, or in
approving the plans despite the non-compliance.3
Holding: The House of Lords (the highest court in the UK at the time) held that the Council
did owe a duty of care to the claimants to ensure the foundations were at the correct depth.
1
Pentony, Graw, Lennard & Parker, 2008
2
Donoghue v Stevenson [1932] AC 562.
3
Anns v Merton London Borough Council [1977]
, However, these two revolutionary cases were considered too rigid and often limited the
scope of liability, primarily limiting claims to situations where a direct contractual
relationship existed. To expand and broaden the scope of liability, another principle, “The
Caparo test/Tripartite test,” was born in the Caparo v Dickman [1990] 2 AC 605,
whereby the plaintiffs bought shares in a company based on audited accounts that
incorrectly showed a profit, but the company was actually in serious financial trouble.
The plaintiffs sued the auditors, arguing they had a duty of care to ensure the accounts
were accurate.
The House of Lords' decision: The House of Lords ruled that the auditors did not
owe a duty of care to the shareholders in this specific situation because the accounts
were prepared for the shareholders as a whole, not for an individual investor making a
purchase.4
The three tests were as follows;
Foreseeability: The claimant must show that it was reasonably foreseeable that their
harm would result from the defendant's actions.
Proximity: There must be a relationship of sufficient proximity between the claimant
and the defendant.
Fair, just, and reasonable: It must be fair, just, and reasonable in the circumstances
for a duty of care to be imposed on the defendant.
2. Standard of Care
Once the facts of the case confirm that the defendant owes the plaintiff a duty of care, it does
not mean the defendant's action results in damage or loss. Therefore, the plaintiff needs to
provide more evidence to prove their statements. Hence, the next step is considering the
second essential of negligence, breach of the Standard of Care. Richards, Ludlow, and
Gibson (2009) summarized that to determine the breach of the Standard of Care, there are
two issues to consider:5
the extent of foreseeable risk created by the defendant's conduct;
the reasonableness or otherwise of the defendant's response to that risk.
The standard of care is determined by comparing a notional reasonable person's actions or
omissions with the defendant's conduct in the same circumstances. The “reasonable person”
is not a specific or real person. It is an imaginary benchmark or device used by the courts6
Accordingly, the reasonable person should examine the two attributes. Firstly, there is a
presumption of average intelligence, which is used to test the defendant's intelligence7. If the
defendant’s intelligence is higher than the average level, then this person is not judged
4
Caparo v Dickman [1990] 2 AC 605
5
Richards, Ludlow, and Gibson (2009)
6
Sappideen, Vines, &Watson, 2009
7
Bagaric, Faris & Carter, 2011
