Revise Novel duty situations for Cambridge 9084 (4.1.5)

When a court faces a negligence claim that does not fall into an established duty category (a 'novel' situation), it does not simply apply the three-stage Caparo test. Instead, the law develops incrementally and by analogy. The courts will look at the closest existing precedents and consider whether it is a small, just, and reasonable step to extend the law to cover the new situation. This cautious approach is driven by policy concerns, particularly the fear of 'opening the floodgates' to a vast number of new claims. These novel areas, including psychiatric harm, pure economic loss, and the liability of public bodies, are therefore governed by specific, restrictive rules that have developed over time to limit the scope of liability.

Claims for psychiatric harm, historically termed 'nervous shock', are treated with caution by the courts. A crucial distinction is made between primary and secondary victims. A primary victim is one who was directly involved in the incident and was in the zone of physical danger, or reasonably believed they were. For them, a duty of care is established if physical injury was foreseeable (Page v Smith); psychiatric injury need not be. A secondary victim is a witness to the event who was not in physical danger. For a duty to be owed to a secondary victim, they must satisfy the stringent control mechanisms laid out in Alcock v Chief Constable of South Yorkshire Police. The case of White v Chief Constable of South Yorkshire Police later confirmed that there is no special category for rescuers or employees; they must also meet the criteria for being either a primary victim (in the zone of physical danger) or a secondary victim to claim for psychiatric harm.

The law of tort generally does not allow recovery for 'pure' economic loss – financial loss that is not a direct consequence of physical injury to the claimant or damage to their property. This is distinguished from consequential economic loss (e.g., loss of earnings from a physical injury), which is recoverable. The general rule against recovery for pure economic loss, established in cases like Spartan Steel & Alloys v Martin & Co, is based on the policy fear of indeterminate liability. The main exception arises from negligent misstatement, as established in Hedley Byrne v Heller. Here, a duty can be imposed if there is a 'special relationship' between the parties. This involves a voluntary assumption of responsibility by the defendant for their advice, and reasonable reliance by the claimant. The scope of this duty is also limited by considering the purpose for which the statement was made, as seen in Caparo Industries plc v Dickman, where auditors were found not to owe a duty to potential investors.

Imposing a duty of care on public bodies (e.g., police, local authorities) or for omissions (failures to act) is heavily restricted by policy. The courts are reluctant to impose duties that could lead to defensive practices or divert public resources. For public bodies, a distinction is made between non-justiciable 'policy' decisions (e.g., resource allocation) and 'operational' failings (e.g., how a task is carried out). While the police generally owe no duty to individuals to prevent crime due to policy reasons (Hill v Chief Constable of West Yorkshire), they can be liable for operational negligence, such as in Rigby v Chief Constable of Northamptonshire, where police were held liable for negligently firing a CS gas canister into a building without having firefighting equipment on standby. Similarly, there is no general duty to be a 'Good Samaritan'. Liability for an omission is only imposed in exceptional circumstances, such as where there is a pre-existing relationship, an assumption of responsibility (Barrett v MOD), or where the defendant created the dangerous situation.