element one - duty of care

• what is the neighbour test?

  the neighbour test is used to establish if a defendant owes a duty of care to the claimant. it states that the defendant must take reasonable care to avoid acts or omissions which are reasonably foreseeable and would likely injure their neighbour.
• How is neighbour defined in the neighbour test?

  people who are closely or directly affected by a defendant's act or omission
• what case introduced the neighbour test?

  Donoghue v Stevenson 1932
• Donoghue v Stevenson 1932 case facts

  Mrs Donoghue drank a bottle of ginger beer that her friend had purchased for her. She found a decomposing snail at the bottom of the bottle and suffered mental and physical harm because of this. she sued the manufacturer claiming that they owed a duty of care to her. The House of Lords created the neighbour test to ensure that people in the future could sue if there was a duty of care owed
• when was the neighbour test abolished?

  the neighbour test was used for decades by judges until it was replaced by the three stage Caparo test in 1990
• what is the three step caparo test?

  1 was damage or harm reasonably foreseeable 2 is there proximity between the claimant and defendant 3 is it fair just and reasonable to impose a duty of care
• part of one Caparo - was damage or harm reasonably foreseeable?

  the damage or harm must be reasonably foreseeable and this depends on the facts of each case e.g. Kent v Griffiths
• Kent v Griffiths - Caparo Stage one

  an ambulance was called to take the claimant to hospital. despite assurance from the control center the ambulance failed to arrive within a reasonable amount of time causing the claimant to suffer respiratory arrest. the courts decided that it was reasonably foreseeable that if the ambulance was delayed they would suffer some harm so they were liable for compensation
• part two of Caparo - is there a proximity of relationship between the claimant and defendant?


  the relationship between the claimant and defendant must be proximate. this means it must be sufficiently close in terms of space time and relationship. there are two cases one where they were close enough and the other where they weren't close enough - bourhill and Mcloughlin
• bourhill - Caparo stage two - not liable

  a pregnant woman heard the sound of an accident as she got off the tram. the accident was caused by a motorcyclist who died in the crash. she approached the scene and went into shock later delivering a stillborn baby. she sued the relatives of the motorcyclists. the court decided that under the neighbour test, the cyclist did not owe a duty of care because they did not have a proximate relationship. therefore he was not liable
• McLoughlin 1982 - Caparo stage two - liable

  while she was at home the claimant's husband and kids were in a car crash caused by a negligent driver. She saw her family before they were rushed to the hospital and suffered psychological harm and a personality change because of this. she tried to sue the negligent driver for psychiatric injury. The House of lords decided that the driver owed a duty of care and that she was proximate through time so he was liable
• past three of Caparo - is it fair just and reasonable to impose a duty of care?


  in most situations, it is easy for the courts to decide if a duty of care is owed. however, problems have arisen when deciding if its fair just, and reasonable to impose a duty on the police. precedent was set in the case of hill and later changed by the case of Robinson
• hill 1990 - Caparo stage three

  a serial killer known as the Yorkshire Ripper had been murdering people in Yorkshire. the claimant's daughter was the killer's last victim before he was caught. By the time of her death, the police had enough evidence to make an arrest but failed to do so. the mother suggested that they owed a duty of care to her daughter. The House of Lords stated that the relationship was not proximate and that it was unfair to sue the police for this
• Robinson - Caparo stage three

  an old lady was injured by police whilst they were arresting a drug dealer. the courts decided that the police don't have a blanket of immunity from being sued and so the Supreme Court overruled the precedent of the case of Hill. this meant that the police could now be sued
• What is the impact of Robinson on the law?

  if there is an established duty of care then there is no need to go through the Caparo test. for example a doctor has a contractual duty to its patients and would therefore not need Caparo - pitwood