Explain the way in which a duty of care is established in a negligence claim

Prior to 1932, the year of the Appeal Court's decision in Donoghue v Stevenson (1932), there was no standardised duty of care in negligence cases. The wrong or tort was acknowledged in certain situations.

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There will be plenty of situations which have been examined by the courts to establish whether a duty of care exists or not. It was Lord Reed who reminded us of this very point when he said in Robinson (Appellant) v Chief Constable of West Yorkshire Police (Respondent) (2018) 'there are many situations in which it has been clearly established that a duty of care is or is not owed: for example, by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients.' Lord Reed went on to make the point in Robinson that '…..the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority.'The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned.' The lack of Parliamentary intervention has been a primary reason why the way in which a duty of care is established has evolved in this incremental manner.

It is only in relation to novel situations that the Caparo test laid down in (Caparo Industries Plc v Dickman and Others (1990)) must be applied. The Caparo test has its origins in the neighbour principle set out in Donoghue v Stevenson (1932), but has been refined into a three stage test. Before we consider the Caparo test in more detail we should perhaps remind ourselves of the principles of Donoghue.

Up and until this time there was no standardised duty of care in negligence cases. The wrong or tort was acknowledged in certain situations. These situations depended upon the courts finding that a duty was owed. Examples included, road accidents, bailments where property is handed over to someone else e.g. on hire and dangerous goods. So the tort existed but it's application was limited to these special circumstances and questions arose as to whether this could be justified.

In Donoghue the opportunity arose for Lord Atkin to draw up a general rule or principle which would cover all the situations where the courts had already held that a party could be held liable in negligence. Lord Atkin stated: 'The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'

The neighbour test as laid down by Lord Atkin has been criticised for being too wide.  However it was welcomed in the sense that lawyers were able to argue that why should the tort only be allowed in limited situations? Why could it not be allowed in new situations, not previously dealt with? No doubt it was equally unclear to clients as to why some claims appeared to be acceptable but not others. As we shall see one possible reason for the courts concerns at this time might arise from policy considerations and the possibility of opening the floodgates.

In any event the case of Home Office v Dorset Yacht Co (1970) enabled Lord Reid to give consideration to the matter and he formed the view that Lord Atkin's rule should apply (in other words a neighbour relationship existed) unless there was some very good reason why it should be restricted. This would have represented a major step forward in the widening of the tort of negligence and the circumstances when a duty of care arose.

The basic elements of a tort action in negligence began to emerge. These were that:
  • there was an existence of a duty of care;
  • there had been a breach of duty based on an objective test;
  • damage had resulted as a consequence of the breach based on the 'but for' test.

There was no recognition of the need for Parliament to intervene at this time as a matter of policy or public safety and the judiciary were content to allow the matter to evolve on a case by case or piecemeal basis. The courts continued to develop principles.

The position then of allowing the courts to establish rights and principles including the way a duty of care is established can be contrasted with the government's apparent willingness to intervene in the matter of insured risks in personal injury cases and motor accident claims in particular.

The law of negligence was to continue to widen with liability apparently expanding at the hands of the judges and the first building case to which the duty of care was applied to a building case in Dutton v Bognor Regis UDC (1972) when Mrs Dutton sued the local authority for allowing, through their building inspector, for the house to be built upon a rubbish tip and inadequate foundations. The case was to be followed by other cases. These other cases included Batty v Metropolitan Property Realisations Ltd (1978) where the risk of a future threat to health was recognised as well as Anns v Merton London Borough Council (1977) causing alarm to local authorities as well as insurers.

In Anns v Merton London Borough Council (1977) the House of Lords developed a new two part test. The test was based partly on the issue of proximity.  Lord Wilberforce stated 'In order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises............

The second test according to Lord Wilberforce was '...........secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.'

Unfortunately it was not long before problems began to emerge with the test in Anns. Such questions as 'was the test too broad so as to make life difficult for insurers?' and 'how did the test address the question of fairness between the parties?'. The test does after all place a great deal of responsibility upon the shoulders of judges as to whether a situation falls within the test. How was the second part of the test to be applied in a situation which fell outside of that of Anns?

Finally, there was concern that the test opened the floodgates with the concept of 'contemplation' or 'foreseeability'.

Was the harm foreseeable? Would a reasonable person in the defendant’s position have foreseen that the claimant might be injured? As one might expect the courts have had the opportunity to address these issues and provide some answers. In Kent v Griffiths (2000) the Court of Appeal applied these questions to the ambulance service when it attended the claimant's home. The claimant suffered an asthma attack and a doctor in attendance called for an ambulance to take the claimant to hospital. The ambulance although only a few miles away was delayed and the claimant had a respiratory arrest. Lord Woolf tackled the key issue head on finding that the claimant was a person who foreseeably would suffer further injuries by a delay in providing an ambulance, that there was no explanation for the delay and that in the circumstances there was sufficient proximity and a duty of care arose when the call for assistance was accepted.


On the facts and in the circumstances is it just and reasonable to impose a duty of care? Is there proximity between the parties? In Hill v Chief Constable of West Yorkshire (1988) (Yorkshire ripper investigation) the family of a murdered girl sued the police following their daughter's murder claiming that the police were liable for failing to apprehend the murderer after the occurrence of other murders in the area. The court of Appeal dismissed the family's appeal on the basis that the police did not owe individuals a general duty of care against criminal activity nor do they owe a general duty to apprehend unknown criminals. It may well have been different if the circumstances had showed that the victim was at particular risk from harm prior to the killing. This would have provided sufficient proximity between the police and potential victims of crime.


Is there proximity in terms of space, time or relationship between the claimant and the defendant? This aspect is highlighted very well in Bourhill v Young (1943) in which proximity was found not to exist as between a Mrs Bourhill and a motorcyclist, John Young, who had crashed his motor cycle after riding too fast, the reason being that Mrs Bourhill arrived on the scene after the crash. The House of Lords agreed that Young owed a duty of care to the driver of the car he had crashed into as it was reasonably foreseeable that if he rode too fast he may crash. Mrs Bourhill had just got out of a tram when she heard the noise of the incident and went over to the accident spot. Mrs Bourhill was affected by the blood on the road and suffered nervous shock (she was pregnant). As there was no proximity the court held that the driver could not have reasonably foreseen that his lack of care over his speed would affect Mrs Bourhill.


Criticisms were voiced in the following cases: Peabody Donation Fund v Sir Lindsay Parkinson (1984) per Lord Keith when he said in relation to Lord Wilberforce's two part test in Anns 'There has been a tendency in some recent cases to treat these passages as being themselves of definitive character. This is a temptation which should be resisted.’ ; The arguments continued and in Rowling v Takaro Properties (1988) Lord Keith voiced further concerns about a 'too literal' application of the test in Anns; Murphy v Brentwood DC (1990) and Yuen Kun-yeu v AG of Hong Kong ( 1987).


This period of expansion whilst welcome to some would not have been universally embraced as it would have created uncertainty over liability leaving parties uncertain as to their possible exposure to risk and the prospect of expensive litigation. In this regard policy has remained an important factor.

In Murphy v Brentwood DC (1990) the House of Lords decided to overrule Dutton v Bognor Regis UDC (1972) and Anns which purported to follow it.

As a result of such concerns a new test has emerged through the work of Lord Bridge in the case of Caparo Industries v Dickman (1990). It is probably best to look at the essential elements in light of actual cases.

As regards foreseeability of the damage: In Jolley v London Borough of Sutton (2000) a duty of care was owed by the defendant who abandoned a boat on waste land. A child had been injured after children had propped it up when trying to repair it. The accident was forseeable but not necessarily likely. The House of Lords took particular note of the ingenuity of children for mischief and applied the principles of foreseeability even though the action was under the Occupiers' Liability Act 1957. Whereas in Topp v London Country Bus (SW) (1993) a company mini-bus had been parked whilst unlocked and with the keys in the ignition over night in a lay-by by an employee. The employee did not turn up in the morning and thieves stole the bus and a woman was killed when they ran into her on her bicycle and she was killed. In an action brought against the bus company they were found not to owe a duty of care for for the actions of the thieves as it was not foreseeable that the bus would be stolen and driven into the cyclist. In Gunn v Wallsend Slipway and Engineering Co (1989) it was held that no duty of care was owed to a woman who contracted mesothelioma. The victim was thought to have inhaled asbestos dust from her husband's overalls. The risk was felt to be unforeseeable at that time although a different decision is likely to be reached today.

As regards proximity: a sufficiently 'proximate' relationship between the parties was not thought to have existed between the police and families of the victims of the Yorkshire ripper Hill v Chief Constable of West Yorkshire (1988) (considered earlier). However this whole area of potential liability by the police and public services generally for serious crimes has been reopened by the Supreme Court's decision in Commissioner of Police of the Metropolis (Appellant) v DSD and another (Respondents) (Worboys case) in which the the Metropolitan police were found to have infringed individual's rights under Art 3 of the European Convention on Human Rights. In Dorset Yacht v Home Office (1970) the matter of proximity by virtue of vicinity was considered to give rise to a duty of care owed by a prison officer when a inmate of a borstal institution escaped and a nearby yacht was damaged by boys from the institution. The House of Lords considered that likely damage to nearby property was foreseeable and found the Home Office liable for damage to a yacht when boys supervised on nearby Brown Sea Island escaped;

It must be fair, just and reasonable to impose such a duty and in Hemmens v Wilson Browne (1993) a solicitor was found not liable in negligence for a mistake as the transaction in question was ongoing and it was still possible to rectify the matter. In Ephraim v Newham LBC (1993) it was considered unfair to impose a duty upon a council to provide a fire escape in accommodation when they had advised the claimant about the availability of alternative flats.

Finally we should not simply accept that the new test laid down by Lord Bridge is the end of the matter. There is the matter of policy considerations which play an important part in the development of the tort of negligence. In some situations by reason of policy, the courts have denied a claim:

Where the claimant is the author of his own misfortune. In Philcox v Civil Aviation Authority (1995) the owner of an aircraft sued the Civil Aviation Authority who had issued a certificate of airworthiness shortly before the aircraft had been involved in an accident. The Court considered did not owe a duty of care to the owner as it would not be fair and reasonable to expect the CAA to protect the aircraft owner from his own failure to maintain the aircraft.

A finding of a duty of care would lead to unreasonable defensive practices by defendants seeking to avoid claims for negligence (Hill v CC of West Yorkshire (1988) and X (minors) v Bedfordshire CC (1995) but now see Commissioner of Police Metropolis (Appellant) v DSD and another (Respondents) (Worboys case) (2018).

For policy reasons the courts have held that certain relationships between the parties warrants a particular decision - e.g. Lawyers Rondel v Worsley, Hall v Simons; Police Hill v CC of West Yorkshire, Reeves v MPC; Judges Sirros v Moore; Fire-fighters Capital and Counties v Hampshire CC.


There is therefore a degree of discretion allowed to the judges and the issue of them having too much say in this defence has not entirely gone away. Is it right or necessary that the judges should have their say over fairness as well as policy?

There also remains the issue of whether the later Caparo test is any different than the neighbour principle, and what is the difference between the tests or is it really a matter of application by the judges? These discussions may be interesting and hold some merit but for the parties themselves their claim or liability may rest upon such arguments and in the hands of the lawyers this is likely to cost money in terms of their time and fees.

There is also the argument that in this technological age of development and advancement the law needs to grow and develop to meet the ever changing needs of society so that it is perhaps inevitable that the law of negligence is bound to be about staying alert to such changes and about how they should be addressed.


(Word count 2836)

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As always the essay lends itself to expansion and further research using the additional resources and links provided.

Donoghue v Stevenson [1932]

Home Office v Dorset Yacht Co Ltd [1970]

Anns v Merton London Borough Council [1977]

Peabody Donation Fund Governors v Sir Lindsay Parkinson & Co Ltd [1983]

Murphy v Brentwood District Council [1991]

Yuen Kun Yeu and Others v The Attorney General for and on behalf of the Commissioner of Deposit-taking Companies (Hong Kong) [1987]

Rowling v Takaro Properties Ltd [1987]

Caparo Industries pIc v Dickman & Ors [1990]

Topp v London Country Bus (South West) Ltd [1993]

Jolley v. Sutton London Borough Council [2000]

Hill v Chief Constable of West Yorkshire Bailii [1987]

homeless persons -- Ephraim v London Borough of Newham

X (Minors) v Bedfordshire CC [1995]

Rondel v Worsley [1967]

Arthur J S Hall & Co v Simons [1998]

Capital & Counties Plc v Hampshire county Council Bailii [1997]

Donoghue -v- Stevenson: The Snail & the Ginger Beer YouTube

Neighbour Principle

Caparo Three Part Test




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