Revision Sheet
Problem Questions:
Did D owe C a duty of care?
1. Look for an established duty of care, legal relationship-Robinson.
Physical injuries which are foreseeable
and proximate [note: can also apply to
property damage cases]
Duty owed by police officers to
pedestrians to ensure their physical
safety [within Donoghue]
Injuries which are foreseeable and
proximate includes disabled persons as
well as able-bodied persons
Liability for damages caused, not
directly, but by a third party over which
D had been expected to exercise
control
Manufacturer and consumer to ensure
safety of product
Duty to ensure patients reasonable
safety between people who run
casualty departments and patients as
soon as the patient has been booked in
Duty owed by any staff within causalty
departments to take reasonable care
not to cause physical injury to those
who presented themselves at accident
and emergency departments
complaining of illness or injury, as soon
as patient has been booked in. This
includes taking reasonable care not to
provide misleading information,
whether given by medical or non-
medical staff, about how long patients
might have to wait before seeing a
clinician. [Within Barnett DOC.]
 Note that for breach: was held
that where the standard
practice was for patients to be
Donoghue [broader ratio]-neighbour
principle [Mrs Donoghue was bought a
bottle of ginger beer, which had a
decomposed snail in it. Mrs Donoghue
suffered personal injury]
Robinson [defendants knocked down
Mrs Robinson when attempting to
arrest a drug dealer. Mrs Robinson was
injured]
Haley v London Electricity Board
[defendants employees left a spade
upright in the pit they were working
on, as they had not been provided with
the resources to make a fence. C was
blind, fell into pit and sustained
injuries]
Home Office v Dorset Yacht Co
Donoghue [narrower ratio]
Barnett [case where doctor sent
patient home with arsenic poisoning,
when he was in need of immediate
medical treatment, and did not
perform an accurate assessment of
Barnett or have him seen by a doctor]
Darnley [as soon as patient attended
A&E seeking medical attention,
provided information and was “booked
in” a recognised duty of care between a
hospital and patient had already been
established. Was held there is a duty
that as soon as someone attends an
A&E department complaining of illness-
staff should take reasonable care not to
cause the patient further injury. Does
not matter that this is a non-clinical
member of staff<- Darnley. Said to fall
squarely within wider DOC of Barnett
for duties of care for those booked in.]
REMEMBER SCOPE OF DARNELY IS
AMBIGOUS-NOT CLEAR AS TO
 triaged within a certain time of
arrival, it was not unreasonable
to require that they be given
that information, either orally
by the receptionist, in a leaflet
or by a prominent notice.
WHETHER DUTY APPLIES AS OON AS
PATIENT WALKS THROUGH RECEPTION
DOOR, OR AS SOON AS PATIENT WALKS
IN.

Duty to disclose material risks to Montgomery

patients
Employer to employee Wilson and Clyde Coal Ltd v English
[1938]
Hospital to patient in relation to their Bailey v Ministry of Defence.
operation and the subsequent
treatment to follow.
‘caterer under a duty not to serve food Bahmra v Dubb
containing eggs as it was a Sikh
wedding where eggs were not
permitted. It was accepted that guests
were entitled to presume there were
no eggs in any of the dishes as they
were not permitted into the Temple
according to religious rules. Therefore,
despite not knowing of the claimant’s
allergy the defendant was still liable.

 Assumption of DOC. Barrett

 If not an established duty of care, might be novel, or might be similar to existing
relationship.
2. Look at analogous cases Robinson. Doesn’t quite cover facts of case. Should we use Caparo
policy test as a cross check here?-Lord Toulson in Michael and Lord Reed in Robinson
suggest an idea that policy factors will colour the determination of whether it is just to
extend (or refuse to extend) the circumstances in which a duty of care is owed (or denied) by
analogy with existing authority
However, SC wanted to stop Caparo being used with no predictability by emphasising in
Robinson that it should only be used in novel cases:
 ‘a defendant should not be allowed to seek to escape from liability by appealing to
some vaguer concept of justice or fairness; the law cannot be re-made for every
case' Perrett v Collins [1999] PNLR 77, 90-91 [cited in Robinson at 26]
3. In novel cases use Caparo test [Robinson]: (i) was the loss to the claimant foreseeable? (ii)
was there sufficient proximity between the parties? (iii) is it fair just and reasonable to
impose a duty of care? [this is replacement to test in Anns set out by Lord Wilberforce:
known two-stage test for the existence of a duty of care. This involves starting with a prima
facie assumption that a duty of care exists if it is reasonably foreseeable that carelessness
may cause damage and then asking 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 arise."]
Can use this test, but if you do, must emphasise this is used as a last resort.
Remember: The Caparo test is not a definitive test, as highlighted by Lord Bridge in Caparo
itself- “little more than convenient labels to attach to the features of different specific
 situations which, on a detailed examination of all the circumstances, the law recognises
pragmatically as giving rise to a duty of care of a given scope”
One should be careful when establishing a new duty of care- As to how the courts should
apply the test, the emphasis in Caparo was upon ‘incremental’ extensions of existing duties
of care, that is to say, a reversal of the emphasis in Anns
 However, what is a novel case?

Seems as if the judges have discretion over what constitutes a novel case.

 When is something foreseeable?

Caparo- Damage is reasonably foreseeable to that particular claimant
 What is proximity?
not physical closeness, but any form of relationship between the parties.
 Hill<- was claimed that victim of a serial killer had been owed a duty of care by police to
conduct criminal investigations properly. However, victim was not proximate enough.
 What is fair just and reasonable?
 Lord Hope in Smith v Ministry of Defence - “court must be especially careful … to have regard
to the public interest, to the unpredictable nature of armed conflict and to the inevitable
risks that it gives rise to when it is striking the balance as to what is fair, just and
reasonable.”
 The Nicholas H [1996] 1 AC 211 [also known as Marc Rich & Co AG v Bishop Rock Marine Co
Ltd.]- Held: no duty of care was owed by the surveyor. The requirement of proximity was
satisfied, but several policy factors pointed against a decision in favour of the owners.
 Note: Fair, just and reasonable mean the same thing? Lord Bridge explains in
Caparo this-different ways of describing the same thing. All 3 are alluding to the
same aspect. Unnecessary wording?

Discuss: is the decision in Robinson, to only use Caparo test in novel cases, right? Need to allow the
defendant a degree of discretion in difficult settings- right under Art 6 of European convention (right
to a fair trial): Osman v UK [1999] 1 FLR 193; Z v UK [2001] 2 FLR 612, is it really a fair trial, if policy is
not considered for established cases, but is considered for novel cases?

Is there actionable damage?

 Actionable damage defined in Darnley, as: “a physical change making the sufferer
appreciably worse off in terms of their health or capability, even if that change was hidden
and symptomless.” [claimants sought to recover in tort for becoming sensitised to platinum
salts by the defendant's negligence. The Supreme Court found, unanimously, that merely
becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable
damage.]<- the sensitisation suffered by the claimants here stopped them from handling
platinum. In contrast, in Rothwell, the pleural plaques suffered by the claimants did not have
any effect on the physical functioning or health of the claimants.
 prior case-Rothwell, it was held that there was no actionable damage, when the claimants
suffered a symptomless physical change-namely arsenic poisoning.<- Does this mean that
Rothwell was wrongly decided? Unclear whether there would be actionable damage or not.

Difference: in Dryden had an effect on the claimants physical functioning, whereas in Rothwell it did
not. In Dryden, the change experienced by the claimants, led to the loss of their capacity to continue
working in the red zones [47] and so they were appreciably worse off. In Rothwell, the pleural
placques suffered increased the claimants chance of developing an illness in the future, but did not
have an effect on the claimants health or way of life at the time of the trial.
Essay Questions
DOC following Robinson
- What did Robinson decide?

i. Focus of DOC analysis is now on principle rather than policy. Court emphasised
that the application of Caparo has been misunderstood; it is only to be applied
to ‘novel’ cases. Where there is an existing established category of DOC the court
should apply this strictly, rather than looking to policy.
ii. Re-emphasises principles that have been there all along

 Principles pushed forward before<- established category that there is no DOC

for pure omissions<-Stovin for justification. X v Bedfordshire-although fact that it
was an omission was indicative of the fact that there was no DOC, this was still
open policy discussion.
 Power of equality principle-public authorities-Robinson emphasises beyond all
contestation, there is no special argument in relation to public authority liability,
a principle which has already been established in many prior cases such as.

iii. Leads to fewer DOC relationships

iv. Leads to narrower DOC relationships

- Is this justified?

 Justified on basis that where the application of Caparo is too wide, this leads to
an unfettered discretion being given to the courts.

 However, is it normatively correct that a claimant will be liable for a

claim in negligence for a momentary lapse of judgement? For example,
in Darnley, a receptionist in a busy A&E department was held to be liable
under the established category in Barnett, although they were merely
following orders, had little agency over their actions, and hospitals are
renown for being chaotic. Giving the court discretion in such cases is
valuable as it allows considerations of fairness and justice to be
accounted for. Moreover, a wide application of Caparo does not
necessarily mean that the courts have unfettered discretion to find a
duty of care. The factors in Caparo must still be satisfied.
- Practical problems:

 Practical problems: decision in Robison causes confusion. Not clear where the
principled approach applies and where the policy approach can be considered.

 For example, in Darnley there is disparity between the decision in the CA

and the SC. Was unclear whether . Moreover, in a future case would be
hard to say whether a patient who arrived at a hospital but did not check
in would follow the established category in Darnley, or whether a Caparo
approach could be used<- to what extent do facts have to be different
for case to be novel?
  Also, in HXA there was arguably an established duty of care in Poole [as
was the view of the court at first instance]. However, CA held that the
definition of assumption of responsibility is unsettled, as Poole was
decided a year before, and there had been very few cases since. Held
that a full policy discussion was needed to work out whether a DOC was
justified.

Relevance of DOC:
 Serves no function:
i. Winfield- no case was ever lost through the absence of a duty [Percy Winfield, ‘Duty
in tortious negligence’ [1934] 34(1) Columbia Law Review]
ii. Buckland- DOC aspect is merely a ‘fifth wheel’ to a negligence enquiry. There is a
duty to everyone, and this is limited by other aspects of the tort [W.W. Buckland,
‘The duty to take care’ [1935]51(4) Law Quarterly Review]

Concept has now been recognised by the House of Lords in cases such as Donoghue v Stevenson
[1932] A.C. 562

Now the first hurdle that a claimant must overcome when establishing there has been a breach
under the tort of negligence. Failure to establish a DOC will lead to no redress, regardless of
principles of corrective justice and any injury the victim has suffered.

Justifications for DOC

i. Ensures scope of negligence liability is not too wide:
 essential as a limiting device for the tort of negligence. Professor Flemming:
tort of negligence needs to be kept within acceptable limits. [John Fleming,
The law of torts (3rd edn, LBC Information Services 1988)]
 example of this is the case of Caparo v Dickman [1990] 2 AC 605, where an
auditor’s negligence was argued to have caused the claimant to buy a
significant shareholding and then the entire third-party company. Lord
Bridge held that there was no duty of care, as to do so would create an
indeterminate amount of liability over an indeterminate class of people for
an indeterminate amount of time.
 For tort law to achieve its purposes, the number of persons who are liable
under the tort of negligence cannot be endless. Needs to have a defined
scope for tort law to work in practice.
i. Ensures certainty:
 binding precedents which lay out the duty concept show the limits as to the
boundaries of negligence liability. This means that parties are aware of the
liabilities they have, and so can insure against risks, and can take measure to
prevent recurrence
 People need to know with certainty the scope of liability under tort, to know
how to avoid liability. Certainty helps tort law fulfil its purpose as a
deterrent of harmful wrongdoing.
ii. Ensures a sense of individual responsibility
 D must be personally responsible for their actions
 Holds individuals to account + in doing so provides justice to those injured
Problems with DOC + reform
i. Wording:
 wording itself is confusing. The role of the duty stage is not to identify a duty of
care, but to identify a duty not to negligently injure others. [Donal Nolan,
'Deconstructing the duty of care' [2013] 129(1) Law Quartely Review 559-588]
 Duty stage does not impose a positive duty on parties to care for and protect
others, rather it imposes a lesser, negative duty to not cause harm to others.
 By framing duty stage in such a way, duty stage may foster the belief that parties
have to take positive steps to look out for others. Such a belief may create an
immense burden on people, who believe they must take positive steps to avoid
liability. This should be avoided.
 Could easily be solved by renaming the stage ‘duty of care’, as the ‘duty not to
negligently injure others’ stage. Although this is wordier than the phrasing ‘duty
of care’ this avoids any confusion. It would not only help avoid the false belief
that one must take positive steps to help others avoid harm, but also would help
guide the judges as to what exactly they are looking for.
ii. Framing of stage
 By framing disparate issues in the language of duty, different problems get
muddled. For example, both policy objections to liability and the issue of
protected interests are dealt with in the duty stage. This could be critical to the
outcome of the case. By blurring the lines between all these different issues and
encompassing them all under the heading ‘duty of care’, the duty of care stage
may cause confusion and produce a less structure and focused enquiry. This
creates injustice.
iii. Lack of clarity as to relevance of policy reasoning
 where there is an established duty of care this is applied strictly, however, in
novel cases, a duty may be determined by means of policy reasoning.
 no denying there is a need for a certain open-endedness in the duty of care
question, as judges cannot choose the facts which come before them, or the
legal dispute they must decide on. [Jane Stapleton, ‘Taking the judges seriously
v. Grand Theories’ [2021] 80(3) Three Essays on Torts] Not all cases will have
been dealt with in precedent, and a judge may need to establish a new duty of
care. The tort of negligence cannot be completely rigid and needs to expand into
new situations.
 However, because there is no definition as to what constitutes being a ‘novel’
case, there is much confusion as to whether judges should decide if there is a
duty of care based on analogy or based on policy reasoning. Such confusion and
incoherence does not allow tort to act coherently in providing justice, as there
may be some situations where a duty of care is found, such as in Michael
Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, where the case
was arguably novel, and could have been decided differently under policy
reasoning.
 confusion and incoherence created by the flexibility of the duty question could
be solved by defining when a case is novel and when policy reasoning should be
applied. This would ensure that the duty question remains flexible, as tort law
requires, but this scope of flexibility would be certain, and so would ensure that
a duty is imposed justly.
Dispense with DOC?
i. Cannot fit into other sections of negligence enquiry:
 in acquired rights cases, such as fiduciary relationships, relationships
created by an assumption of responsibility, and contractual
relationships, negligence liability is dependent on the existence of a
particular relationship between the parties. Such a relationship could
not be assessed under any existing stage of the tort of negligence. By
deconstructing the duty concept altogether, it would create a great deal
of confusion in other parts of the law. The same issues would still have
to be dealt with; however, they would have to fit into other areas of the
law.
ii. Other stages are inadequate:
 Other stages such as breach, are not yet set up to act as an adequate
control mechanism to contain claims.
 Could argue remoteness could replace DOC in acting as a control
mechanism. In JD v East Berkshire Community Health NHS Trust [2005] 2
AC 373 Lord Bingham stated he would ‘welcome’ such as shift in focus.
Lord Nicholls in the same case suggested such a proposal is ‘not without
attraction’. However, remoteness would cause much uncertainty, as to
what constitutes being remote and what does not. To be a successful
control mechanism, liability needs to be clear and certain. Thus,
remoteness is not an adequate control mechanism to contain claims.

Could, however, make the duty stage less prominent. Where another existing element of the
negligence enquiry could deal with the question of law, it could be dealt with under that heading,
rather than under the duty of care question. This would mean all the stages of the tort of negligence
would have to be considered before a claim was dismissed under the duty of care stage.