Tort: Duty of care

• Duty of Care - A legal obligation to take reasonable steps to avoid causing harm to others.
• To prove a defendant (D) negligent, you must show:

  • D owed C a duty of care
  • D breached that duty
  • D's breach of duty caused C's damage
• Lord Atkin in Donoghue v Stevenson (1932) established the neighbour principle:

  • Take all reasonable care to avoid acts and omissions that could reasonably foreseeably injure your neighbour
  • Neighbour is someone closely and directly affected by your actions
• Caparo v Dickman (1990) provided a practical way to determine duty with the Three Stage Test:

  • Proximity: Was C legally close to D?
  • Foreseeability: Was injury to C reasonably foreseeable?
  • Equitability: Was it fair to impose a duty on D?
• • Hill v Chief Constable West Yorkshire (1988): Police do not owe a duty to protect the public through the performance of their investigation of crime
• Cases illustrating the Three Stage Test:

  • McLoughlin v O'Brian (1983): Proximity is not solely about time & distance but also legal relationship
  • Bourhill v Young (1943): Injury to miscarrying claimant was not foreseeable by an ordinary person
  • Haley v London Electricity Board (1964): Injury to blind claimant was foreseeable by an ordinary person
  • Mulcahy v Ministry of Defence (1996): Imposing a duty on a soldier in an active gun battle was not equitable
• Policy considerations can prevent a duty even if the Caparo Test is met, e.g. lack of funds to pay all claims (Alcock v Chief Constable of South Yorkshire, 1991)
• Caparo v Dickman (1990) is only needed for novel cases. Police owe a duty where injury is caused by commission (Robinson v Chief Constable West Yorkshire, 2018)
• To prove D negligent, you must show:

  • D owed C a duty of care
  • D breached that duty
  • D’s breach of duty caused C’s damage
• Privity of contract means that generally contractual duties are only owed to the contracting parties
• Lord Atkin in Donoghue v Stevenson (1932) established the neighbour principle:

  • Take all reasonable care to avoid acts and omissions that could reasonably foreseeably injure your neighbour
  • Neighbour is someone closely and directly affected by your act
• Caparo v Dickman (1990) provided a practical way to determine duty of care with the Three Stage Test:

  • Proximity: Was C legally close to D?
  • Foreseeability: Was injury to C reasonably foreseeable?
  • Equitability: Was it fair to impose a duty on D?
• Proximity:

  • McLoughlin v O’Brian (1983): Claimant's proximity not solely about geography, impacted as though she were at the scene

  Foreseeability:

  • Bourhill v Young (1943): Miscarriage of claimant not foreseeable
  • Haley v London Electricity Board (1964): Injury to blind claimant was foreseeable
• Just & equitable:

  • Mulcahy v Ministry of Defence (1996): Duty not imposed on soldier in active gun battle
  • Hill v Chief Constable West Yorkshire (1988): Police do not owe a duty to protect the public through crime investigation
• Policy:

  • Alcock v Chief Constable of South Yorkshire (1991): Lack of funds can prevent a duty even if Caparo Test is met
  • Robinson v Chief Constable West Yorkshire (2018): Caparo only needed for novel cases, police owe duty where injury caused by commission
• Duty One-Liners:

  • Donoghue v Stevenson (1932): Established Lord Atkin’s neighbour principle
  • Caparo v Dickman (1990): Proximity, foreseeability, and equitability indicate a duty
  • McLoughlin v O’Brian (1983): Proximity is not solely about time & distance but also legal relationship
  • Bourhill v Young (1943): Injury to miscarrying claimant was not foreseeable by an ordinary person
  • Haley v London Electricity Board (1964): Injury to blind claimant was foreseeable by an ordinary person
• • Mulcahy v Ministry of Defence (1996): Imposing a duty on a soldier in an active gun battle was not equitable
  • Hill v Chief Constable West Yorkshire (1988): Police do not owe a duty to protect the public through the performance of their investigation of crime
  • Alcock v Chief Constable of South Yorkshire (1991): Policy can prevent a duty even where Caparo Test is met, e.g., lack of funds to pay all claims
  • Robinson v Chief Constable West Yorkshire (2018): Caparo only needed for novel cases – Police owe duty where injury caused by commission