TORT SUPERVISION III REVISION
Negligence: Duty of Care (Part I)
I. BASICS
DUTY OF CARE TESTS
Neighbour Principle – Lord Atkins
Taken from Donoghue v Stevenson
You must take reasonable care to avoid acts/omissions which you can reasonable foresee would be likely
to injure your neighbour (persons who are so closely and directly affected by the act)
Anns Test
Two stages:
i. Requires a sufficient relationship of proximity based upon foreseeability
ii. Are there policy considerations to negate liability?
Criticised for making it too easy to establish a duty of care
Murphy v Brentwood District Council: “introduced a new species of liability governed by a principle
indeterminate in character…potentially covering a wide range of situations” in which the law of
negligence had no place
Caparo Test
i. Damage must have been reasonably foreseeable
ii. There must be a relationship of proximity between the parties
iii. It must be ”fair, just & reasonable” to impose a duty of care
These requirements are the ones normally used to resolve cases BUT they are extremely fluid & vague –
don’t treat them like statutory language
Only applies to novel situations not already covered; it there is already authority for a duty of care to be
imposed e.g. drivers – Caparo factors are not needed
Incrementalism
Sutherland Shire Council v Heyman (Australian case): “law should develop novel categories
incrementally and by analogy with established categories, rather than by massive extension of prima
facie duty of care”
GENERAL SITUATIONS
i. Physical harm
What has to be established: reasonably foreseeable that the defendant’s actions would result in the claimant
suffering some kind of physical injury
ii. Property damage
What has to be established: it was reasonably foreseeable that the defendant’s actions would result in property
being damaged, and that the claimant had a sufficient interest in the property at the time it was damaged
iii. Psychiatric illness
What has to be established: reasonably foreseeable that the defendant’s actions would result in the claimant
suffering some form of psychiatric illness, and there was sufficient degree of proximity between D’s actions and
the claimant’s psychiatric illness
iv. Pure economic loss
What has to be established: there was a special relationship between D and V, or special circumstances that
would make it ‘fair, just and reasonable’ to find that the defendant owed the claimant a duty of care geared
towards protecting the claimant from suffering some kind of pure economic loss
v. Pure distress
What has to be established: there was a contractual relationship between D and V, under which D undertook to
perform some task for V with reasonable skill and care, and an important object of D’s undertaking was to secure
some mental satisfaction for the claimant, or to save V from some sort of mental distress
NB:
“Reasonable foreseeability” = “real risk” (Lord Reid in Wagon Mound)
Less serious harm is harder to establish a duty of care for
Negligence: Duty of Care (Part I)
I. BASICS
DUTY OF CARE TESTS
Neighbour Principle – Lord Atkins
Taken from Donoghue v Stevenson
You must take reasonable care to avoid acts/omissions which you can reasonable foresee would be likely
to injure your neighbour (persons who are so closely and directly affected by the act)
Anns Test
Two stages:
i. Requires a sufficient relationship of proximity based upon foreseeability
ii. Are there policy considerations to negate liability?
Criticised for making it too easy to establish a duty of care
Murphy v Brentwood District Council: “introduced a new species of liability governed by a principle
indeterminate in character…potentially covering a wide range of situations” in which the law of
negligence had no place
Caparo Test
i. Damage must have been reasonably foreseeable
ii. There must be a relationship of proximity between the parties
iii. It must be ”fair, just & reasonable” to impose a duty of care
These requirements are the ones normally used to resolve cases BUT they are extremely fluid & vague –
don’t treat them like statutory language
Only applies to novel situations not already covered; it there is already authority for a duty of care to be
imposed e.g. drivers – Caparo factors are not needed
Incrementalism
Sutherland Shire Council v Heyman (Australian case): “law should develop novel categories
incrementally and by analogy with established categories, rather than by massive extension of prima
facie duty of care”
GENERAL SITUATIONS
i. Physical harm
What has to be established: reasonably foreseeable that the defendant’s actions would result in the claimant
suffering some kind of physical injury
ii. Property damage
What has to be established: it was reasonably foreseeable that the defendant’s actions would result in property
being damaged, and that the claimant had a sufficient interest in the property at the time it was damaged
iii. Psychiatric illness
What has to be established: reasonably foreseeable that the defendant’s actions would result in the claimant
suffering some form of psychiatric illness, and there was sufficient degree of proximity between D’s actions and
the claimant’s psychiatric illness
iv. Pure economic loss
What has to be established: there was a special relationship between D and V, or special circumstances that
would make it ‘fair, just and reasonable’ to find that the defendant owed the claimant a duty of care geared
towards protecting the claimant from suffering some kind of pure economic loss
v. Pure distress
What has to be established: there was a contractual relationship between D and V, under which D undertook to
perform some task for V with reasonable skill and care, and an important object of D’s undertaking was to secure
some mental satisfaction for the claimant, or to save V from some sort of mental distress
NB:
“Reasonable foreseeability” = “real risk” (Lord Reid in Wagon Mound)
Less serious harm is harder to establish a duty of care for
