9084 · 4.1.2
Duty of care — FAQ
Frequently asked questions for 9084 Duty of care. Direct answers first, then deeper explanation — then practise with marking.
Do I have to apply the Caparo test every time I see a negligence problem?
No, this is a common misconception. The Caparo test is for establishing a duty in novel situations. For common scenarios like a car crash or a medical error, you should simply state that the duty of care is 'established' by precedent (e.g., road user to road user, doctor to patient) and then move on to analyse breach of duty.
Is the 'neighbour principle' from Donoghue v Stevenson irrelevant now?
Not at all. The 'neighbour principle' was the foundation of the modern law of negligence. The first two stages of the Caparo test (foreseeability and proximity) are essentially a refinement and formalisation of Lord Atkin's original concept. While we now use the more structured Caparo test for new cases, the core idea of foreseeability and closeness remains central.
What is the 'fair, just, and reasonable' stage really about? It seems very vague.
This stage is about public policy. The court acts as a gatekeeper, asking whether, as a matter of social policy, the law should recognise a duty in this type of situation. It is used to prevent the 'floodgates' of litigation, protect public services (like the police in Hill v Chief Constable of West Yorkshire), and ensure the law does not expand liability too far or too quickly.
Why isn't there a general duty to rescue someone in danger?
The law of negligence is generally reluctant to impose liability for 'omissions' or failures to act. The courts have been unwilling to compel individuals to be 'good Samaritans', partly because it would be difficult to define the scope of such a duty (e.g., who should be liable in a crowd of onlookers?) and it would infringe on individual liberty. Liability is only imposed for omissions in specific situations, such as where there is an assumption of responsibility.