Negligence – Duty of Care

Law of Torts I

Lecturer: Christopher Gray

E-mail: cg15586@my.bristol.ac.uk

What is negligence?

“a breach of a legal duty to take care which results in damage to the claimant”
- Rogers in Winfield and Jolowicz on Tort

Negligence is not concerned with intention to cause harm, but when it is caused through
carelessness.

Elements of negligence

1. Duty of care
2. Breach of duty
3. Damage
4. Defences

Duty of care – historical development

Donoghue v Stevenson (1932) – the landmark case that invented the tort of negligence

Previously, no duty of care recognised towards other people, in Winterbottom v Wright this
was exemplified – responsibility for the wellbeing of others was only assumed in a
contractual relationship.

Lord Atkin’s neighbour principle:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour”

Two elements:
1. Reasonably foresee

2. Neighbour – “persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation”

Anns v Merton LBC (1978)

Lord Wilberforce’s “two stage test”

 1. Is there a sufficient relationship of ‘proximity or neighbourhood’ between the
claimant and defendant?

2. Are there any other considerations which might lead the court to deny a duty of care,
or limit its scope?

The other considerations mentioned often took the form of political or economic
considerations.

But this created an assumption in favour of a duty of care, this was progressively discredited
in other cases.

Current test: Caparo v Dickman (1990)

The threefold test:

1. The damage must be foreseeable
2. There must be a sufficiently proximate relationship between the parties
3. It must be ‘fair, just and reasonable’ for the court to impose a duty of care.

These three stages are designed to be considered all at once, rather than in two stages.

This is the accepted test, but is recognised as a “convenient general framework” and “not
providing an easy answer […] only a set of fairly blunt tools” - Customs and Excise
Commissioners v Barclays (2006)

The three stages:

- Foreseeability – must be someone who is ‘closely and directly affected’ by the

conduct, not merely in the same area.
See for example: Bourhill v Young (1943); Palsgraf v Long Island Railroad (1928)

- Proximity – the closeness of the relationship between the claimant and defendant, the
standard is hard to define, and varies according to the type of damage claimed.
So how is it decided? With reference to policy considerations.

Lord Oliver in Alcock v Chief Constable of South Yorkshire (1992):

“the concept of ‘proximity’ is an artificial one which depends more upon the court’s
perception of what is the reasonable area for the imposition of liability than upon any
logical process of analogical deduction”

This also helps with determining the scope of the duty, the loss actually suffered
cannot be more than the defendant had assumed a duty of care towards.

- Fair, just and reasonable – does this serve any purpose if policy considerations are
taken into account when determining proximity?

Other factors which can be taken into account in finding a duty of care:

- The type of harm suffered

 - Whether the damage is caused by act or omission

“the common law does not impose liability for what are called pure omissions”
- Lord Goff in Smith v Littlewoods Organisation Ltd

This is the accepted rule in English common law, but the distinction between the two is
blurry. An omission in the course of a positive act is considered a part of that positive act.

This means two things:

- There is no general duty to rescue under English law
A duty of care needs between the claimant and defendant must already exist.

- There is no general duty to prevent others from causing damage

Smith v Littlewoods Organisation Ltd – defendants were held to be not liable for the
actions of others on their property

There are 4 occasions however, when there may be a duty to prevent others from causing
damage:
1. Special relationship between the defendant and claimant – Stansbie v Troman (1948)
2. Special relationship between the defendant and the third party – Home Office v
Dorset Yacht (1970)
3. When the defendant creates a source of danger then completed by a third party –
Haynes v Harwood (1935)
4. Failing to take measures to limit danger caused by a third party – Clark Fixing Ltd v
Dudley MBC (2001)

Why treat an omission differently from an act?

Lord Hoffmann in Stovin v Wise (1996) gives 3 reasons:
1. Political – “less invasion of freedom from the law to require him to consider the
safety of others in his actions than to impose on him a duty to rescue or protect”
2. Moral – “the ‘why pick on me’ argument […] a duty to prevent harm to other or to
render assistance […] may apply to a large and indeterminate class of people who
happen to be able to do something. Why should one be held liable rather than
another?”
3. Economic – negligence acts as a way of distributing the costs for the danger of
activities to those who should bear the costs, how can you justify putting the costs on
something who is not doing anything?

- The type of defendant

Local Authorities
- Policy objections – is it desirable to undermine the framework developed as a political
matter? Would there otherwise be created a divide between public and private clients?

Result is the creation of a divide between policy and operational matters. Authorities can be
held liable for operational failures. See Anns v Merton LBC (1978)

When does the authority ‘assume responsibility’?

- When there is a duty, rather than a power – Gorringe v Calderdale MBC
- When there is a positive act, rather than an omission – Stovin v Wise (1992)
 o Except in exceptional circumstances – Kane v New Forest District Council
(2002)

Police

The police are liable in the same way as anyone else in normal cases of operational
negligence, for example Rigby v Chief Constable of Northamptonshire (1985)

Also in cases where they have assumed responsibility for the safety of another. For example,
Reeves v Metropolitan Police Commissioner (2000); Swinney v Chief Constable of
Northumbria Police (1997)

However, in certain cases, a duty of care is not found, the ‘core principle’ from Hill v Chief
Constable of West Yorkshire (1989).
Where:
- Liability would encourage defensive practices, impeding the progress of
investigations
- Defending the claim would require too much time, effort and expense.

This was confirmed in Brooks v Commissioner of Police (2005) and Smith v Chief Constable
of Sussex (2008).

Fire Brigade

Capital & Counties Plc v Hampshire CC (1997) – in this case, 4 appeals were conjoined.

2 were allowed, 2 were rejected. Where the fire brigade had made the situation worse than if
they had not attended, they were held to have a duty of care.

The same rule applies for the coastguard – OLL v Secretary of State for the Home
Department (1997)

Ambulance service

Kent v Griffiths – the court held that accepting an emergency call imposed a duty of care,
where there are not policy considerations.

The legal profession

Previously, barristers and solicitors enjoyed immunity for their conduct in court

However, in the case of Hall v Simons, this was overturned.