Duty Of Care

• The tort of negligence was established in the case of Donoghue v Stevenson.
• All that is required is the application to particular circumstances of established principles governing liability for personal injuries.
• Mrs Donoghue was in a cafe in Paisley in Scotland drinking ginger beer from an opaque bottle that had been bought for her by her friend.
• When Mrs Donoghue's glass was topped up, the remains of a decomposed snail fell from the bottle, leading to her suffering shock and severe gastroenteritis.
• The House of Lords decided that a legal duty of care could be owed by a manufacturer to a consumer even though no contractual duty existed.
• The three judges who supported the establishment of a legal duty of care outside of a contractual relationship were Lord Atkin, Lord Macmillan and Lord Thankerton.
• Lord Atkin stated that there was a 'neighbour principle' which imposes a universal duty to take care.
• Lord Macmillan stated that 'the categories of negligence are never closed'.
• The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty.
• The case of Donoghue and Stevenson was sent back to the Scottish Court of Session to be tried on the facts of the case using the 'duty of care' principles, but the trial never took place because Stevenson died.
• Mrs Donoghue was paid a sum of money in an out of court settlement by Stevenson's estate.
• The exact sum paid in the case of Donoghue and Stevenson is disputed but generally believed to be in the area of £200.
• The Supreme court ruled that a duty of care was owed.
• The claimant brought an action in negligence against the police.
• In the present case, however, the court is not required to consider an extension of the law of negligence.
• Two police officers who were trying to carryout the arrest fell on to the claimant when she was on the ground.
• Lord Bridge also suggested that the law of the ‘duty of care’ should develop on an incremental basis as new situations arise rather than assume it exists in all situations.
• Lord Bridge in Caparo Industries PLC v Dickman [1990] stated that in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.
• The courts will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.
• In the case of Robinson v Chief Constable of West Yorkshire Police (Rev 1) [2018] UKSC 4, the claimant, a 76 year old woman, sustained injuries when she was knocked to the ground by a drug dealer in his escape from arrest.
• In the case of Bharma v Dubb [2010], the court extended the duty of care to include a situation where a drug dealer knocked a 76 year old woman to the ground during his escape from arrest.
• In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from).
• The trial judge applied the Caparo test for duty of care and found that it was reasonably foreseeable that harm would result from the officer's actions and the claimant was in very close proximity, but dismissed the claim on the third stage of Caparo on the grounds that Hill v CC Yorkshire had granted immunity to the police from negligence claims.
• In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions.
• The decision of the House of Lords was based on the fact that there was not sufficient proximity in the relationship between the auditor and the shareholders such as Caparo.
• The Court of Appeal held that the auditor owed shareholders, one of which was Caparo, a duty of care which it had breached when it made its negligent misstatement with the publishing of the accounts.
• Caparo Industries PLC v Dickman [1990] established a three-part test for establishing a duty of care: harm must be reasonably foreseeable as a result of the defendant's conduct, the parties must be in a relationship of proximity, and it must be fair, just and reasonable to impose liability.
• Donoghue and Stevenson [1932] is a case about a snail and ginger beer.
• Fidelity was not doing well and in 1984 Fidelity’s annual accounts were done with the help of their auditor (Dickman) and issued to the shareholders.
• Lord Reed stated that the proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken.
• Incorporated Council of Law Reporting and Scottish Council of Law Reporting provide information about the case.
• The House of Lords held that there was no duty of care owed by the auditor to shareholders such as Caparo.
• The case was based on the extent to which one party was liable for the damage caused to another party by a negligent misstatement.
• Caparo Industries plc wanted to take over another company called Fidelity plc and started buying the shares of the company.
• The case was decided by the House of Lords.
• If the duty of care owed for the misstatements was extended to include third parties such as shareholders then liability would be owed to an almost limitless number of persons.
• Home Office v Dorset Yacht Co Ltd [1970] is a case about the liability of auditors for negligence.
• Caparo sought the difference in value between what the company was actually worth and what the accounts suggested it was worth.
• Lord Bridge argued that the interest of the shareholders in the proper management of the company's affairs is indistinguishable from the interest of the company itself and any loss suffered by the shareholders, e.g. by the negligent failure of the auditor to discover and expose a misappropriation of funds by a director of the company, will be recouped by a claim against the auditors in the name of the company, not by individual shareholders.
• Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] is a case about the liability of auditors for negligence.