Duty of care — common mistakes

When answering a problem question, first identify the relationship between the claimant and defendant. If it is an established duty (e.g., driver and pedestrian), state this clearly. Only apply the full three-stage Caparo test if the situation is novel or unusual, such as a case involving a public authority's failure to act or a claim for pure economic loss where no precedent exists.

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.

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.

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.

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.