Revise Duty of care for Cambridge 9084 (4.1.2)

The modern concept of a general duty of care originates from the landmark House of Lords decision in Donoghue v Stevenson [1932]. Prior to this, a claimant could generally only sue if they had a contract with the defendant. In this case, Mrs Donoghue had no contract with the ginger beer manufacturer. Lord Atkin formulated the 'neighbour principle' to overcome this, stating, "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." He defined a neighbour as someone "so closely and directly affected by my act that I ought reasonably to have them in contemplation." This established a general principle of liability based on foreseeability, moving beyond rigid, pre-defined relationships.

Over time, the courts felt the neighbour principle was too broad and could lead to a 'flood' of litigation. The case of Caparo Industries plc v Dickman [1990] established a more restrictive, three-stage test for imposing a duty of care in novel situations. This incremental approach ensures the law develops cautiously. To establish a duty, a claimant must now prove three things: firstly, that the harm was a reasonably foreseeable consequence of the defendant's conduct; secondly, that there was a relationship of proximity between the parties; and thirdly, that it is fair, just, and reasonable in all the circumstances to impose a duty. This test is the current authority for establishing a duty in new or problematic factual scenarios.

The first two stages of the Caparo test refine the original neighbour principle. 'Reasonable foreseeability' is an objective test: would a reasonable person in the defendant's position have foreseen the risk of harm to the claimant? In Kent v Griffiths [2000], it was foreseeable that an unjustified delay in an ambulance arriving would cause further injury. 'Proximity' means more than just physical closeness; it refers to a legal closeness or connection between the parties. This could be through time, space, or a relationship. In Bourhill v Young [1943], a pregnant woman who suffered shock after hearing a motorcycle crash was not a foreseeable victim and lacked proximity, as she was outside the immediate area of danger.

The third stage of the Caparo test is a matter of public policy. Here, the court considers whether it is in the public interest to impose a duty of care. This stage acts as a crucial control mechanism, allowing judges to deny claims even if foreseeability and proximity are present. Key concerns include preventing the 'floodgates' of litigation and protecting public services from liability that might lead to defensive practices and a diversion of resources. For example, in Hill v Chief Constable of West Yorkshire [1989], the court held it was not fair, just, and reasonable to impose a duty on the police towards a potential victim of a crime they were investigating. This policy stance was reaffirmed by the Supreme Court in Michael v Chief Constable of South Wales Police [2015], where it was held that the police do not generally owe a duty of care in how they handle emergency calls, for fear of compromising operational decisions.

As a general rule, the common law does not impose a duty to act to prevent harm (an omission), nor does it hold a person responsible for the wrongful acts of a third party. For example, a person who sees a stranger drowning has no legal duty to attempt a rescue. Liability in negligence is based on misfeasance (acting badly), not non-feasance (failing to act). However, there are important exceptions where a duty can arise.

Exceptions include:

• Control: Where the defendant has a high degree of control over the third party who caused the damage. In Home Office v Dorset Yacht Co Ltd [1970], Borstal officers were held liable for damage caused by escaped trainees because the officers had control over them and their escape was foreseeable.
• Assumption of Responsibility: Where the defendant has voluntarily assumed a responsibility to protect the claimant from harm. In Stansbie v Troman [1948], a decorator who left a house unlocked was liable for a subsequent burglary because he had assumed a duty to secure the premises. Similarly, in Kent v Griffiths, the ambulance service assumed a responsibility by accepting the 999 call.
• Creating or Worsening a Danger: Where the defendant has created a source of danger or made a situation worse. In Capital & Counties plc v Hampshire County Council [1997], the fire brigade was held liable for turning off a sprinkler system (a positive act that worsened the fire), but was not liable in other cases for simply failing to put out a fire (a pure omission).

It is crucial to understand that the full Caparo test is only applied in novel or problematic cases where the law is unclear. In most negligence scenarios you will encounter, the existence of a duty of care has already been confirmed by previous court decisions. These are known as 'established duty situations'. In such cases, it is unnecessary to apply the three-stage test. You should simply state that a duty is established by precedent and cite the relevant authority if known. Recognising these shortcuts is key to efficient problem-solving in an exam.