Duty of Care Lecture

Duty of Care

What is a ‘Duty of Care’?

Duty of care constitutes the first of the three primary elements of tort (duty of care, breach and causation). Whilst there are many situations in which an individual might have acted carelessly, unless they have a duty of care to the person harmed by their carelessness, then no claim will arise. This is a key point - whilst a case (or problem question) might present the clearest existence of breach and causation possible, it will fail if duty of care is not present at the time of the breach.

Although the term ‘duty of care’ can seem a little alien at first, it can roughly be thought of a responsibility of an individual to not harm others through carelessness. For example, a driver on the road has a responsibility to other road users to not cause an accident through driving carelessly. In other words: they have a duty of care to other road users.

Because of its ability to make or break a given case, duty of care is often thought of as a ‘control mechanism’ within the law - essentially, a way for the courts to make a distinction between cases which are legally significant, and therefore worth pursuing, and those cases which do not merit legal attention.

The Development of the Duty of Care

The legal basis for finding a duty of care has its roots in Donoghue v Stevenson [1932] AC 562. Although, as will be noted below, there exists a more modern test to establish a duty of care, Donoghue v Stevenson provides the theoretical basis for the duty of care, and thus modern negligence, and so it is necessary to be familiar with the case.

Before Donoghue v Stevenson, the concept of duty of care did not exist in any particularly notable form within the English law. This meant that unless a plaintiff had a contract with a defendant, they had no means of bringing a case in negligence. This led to a considerable number of injustices when individuals were injured by clear instances of negligence. An example of this phenomenon can be seen in Winterbottom v Wright (1842) 10 M&W 109. In the case, the defendant (Wright) was contracted by the UK’s Postmaster-General to maintain a horse-drawn mail coach in a safe state. The plaintiff (Winterbottom) was also contracted by the Postmaster-General to drive the coach between destinations but was injured when the coach collapsed due to disrepair. Although it was clear that Wright had acted negligently, the courts held that Winterbottom could not sue Wright, because a contract did not exist between the two. In essence, the contract concept of privity prevented legal action.

It does not take a huge amount of insight to see the problems that might have arisen as a result of the above decision. For example, a consumer injured by a bottle mistakenly filled with acid rather than soda would have no legal recourse if somebody else purchased the soda for them. Similarly, since road users do not have contracts with each other, none could be said to owe each other a duty of care, no matter how dangerously they were driving. This is clearly problematic - we want our soda producers to ensure their products are safe, and we want drivers on the road to be careful, and the threat of being sued is a useful deterrent to unsafe behaviour.

It is, therefore, fortunate that the courts established the generally applicable concept of duty of care in Donoghuev Stevenson. It should be noted that the concept of a duty of care was not created specifically in Donoghue; instead, it was restricted to a few, highly specific situations. Thus, statements that the courts ‘invented’ or ‘created’ the duty of care concept in Donoghue are false, and should be avoided. Instead the courts can be thought of as greatly widening the remit of the concept.

Key to the decision is the reasoning of Lord Atkin (who led the majority of the court). Atkin held that a general duty of care could be said to exist between two parties under the ‘neighbour principle’, described in this key quote:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be-persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question."
- Lord Atkin, Donoghue v Stevenson, at 44.

Thus, Stevenson should have taken reasonable care to avoid snails or similar from getting into its products, because it is foreseeable that they might harm someone who consumed them. Notably, Atkin also posits (at 57) that to reject the neighbour principle (and thus the wider application of the duty of care concept) would be unjust, as it would allow manufacturers to knowingly send faulty products out into the world to injure consumers.

However, Lord Atkin’s description of the neighbour principle is relatively broad in scope, and is thus inclusive of a wide range of situations. As a result of this, a number of cases subsequently sought to limit the application of the neighbour principle, such as limiting it to cases involving physical harm or damage to property (Old Gate Estates Ltd v Toplis & Harding & Russell [1939] 3 All ER 209).

Following these restrictions, the law once again returned towards the application of a universal principle, with Anns v Merton London Borough [1978] AC 728 establishing a two-part test similar to the one employed in Donoghue. The first part of the Anns test essentially recreates the neighbour principle - a duty can be said to exist where it is foreseeable that someone will be harmed as a result of negligence. The second part, however, includes the caveat that the defence can argue against the existence of a duty with reasons of policy. It should be noted that whilst Anns has been rejected by the UK, it is still in use in a number of other commonwealth jurisdictions.

The Anns approach was rejected once again in favour of the test laid down in Caparo Industries v Dickman [1990] 2 AC 605 test, which is the currently applicable test for establishing a duty of care. This is discussed in the next section.

The Current Law: The Caparo Test

Caparo constitutes the currently applicable test for establishing a duty of care, and thus it is important that you have an in-depth knowledge of the how the test is applied. It is worth noting, however, that the test should only be applied in full in situations which do not involve a pre-defined duty of care. Such situations include doctor-patient, solicitor-client, manufacturer-consumer and employer-employee relationships, as well as situations involving one road user and another. It will be sufficient to simply state that the duty of care in such a situation has long been established (thus, allowing the use of exam time or essay word counts on more important matters.) Indeed, this is the process undertaken by the courts - they will first look to see if there is an established legal position on the relationship between the two parties before applying Caparo and examining whether a new duty of care should be created.

The Caparo test is made up of three stages: foreseeability, proximity and fairness. This first stage revolves around whether it is foreseeable that the defendant’s carelessness could cause damage to the claimant. A prime example of foreseeability can be seen in the US-based case of Palsgraf v Long Island Railroad Co [1928] 248 N.Y. 339. In the case, the defendant dropped a box of fireworks, which caused an explosion, which in turn caused a set of heavy metal scales to fall onto the claimant, injuring her. Although it was possible to trace the claimant’s injuries to the defendant’s negligence, the court denied the claim - in applying a test of foreseeability, the courts found that it was not foreseeable that the claimant would be injured. In contrast, consider what would have happened had the claimant been injured by the explosion itself - it would be quite foreseeable that dropping fireworks (of the variety found in 1928) would cause an explosion, and that that explosion might injure someone standing close enough. If this had been the case, then the courts would have likely found the harm to be foreseeable.

The second stage is based on whether there is a relationship of proximity between the defendant and the claimant. This does not dictate that there must be physical proximity between claimant and defendant, rather that there must be a connection between the two. An example of proximity (or, rather, a lack of proximity) can be seen in Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5 - members of the general public coming across the aftermath of the Hillsborough disaster and suffering nervous shock as a result were held to not be owed a duty of care by the defendants, because the link between the defendants and claimants was held to be too distant.

The third and final stage of Caparo involves establishing whether it would be fair, just and reasonable for the courts to find that the defendant owed a duty of care to the claimant. Owing to the vague nature of this criteria, this stage can be thought of as somewhat of a ‘safety valve’, allowing judicial discretion in cases where public policy might dictate that it would be unreasonable for a duty of care to be held to exist. Examples of the use of this criteria can be seen in cases like Marc Rich & Co v Bishop Rock Marine Co Ltd [1995] UKHL: a ship surveyor negligently carried out a safety survey on a ship which later sunk. The courts found that it would not be just for a duty of care to be found between the surveyor and the owner of cargo on board the surveyed ship. Although finding both foreseeability and proximity, the courts noted (at p.22 onwards) that it was an industry-standard for such claims to be settled between the cargo owner and the ship owner - both of whom bore insurance to that end. It was, thus, decided that it would be unjust to place liability onto the safety surveyors. Despite the apparent wide-range of cases in which this stage can be used to defeat a claim, it is worth noting as per X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (at 749), that the presumption will usually be that this stage will be passed, unless convincing precedent exists.

So, if all three of these stages are passed, the case can be said to have satisfied the Caparo test, and thus a duty of care can be said to exist.

Exceptions and Special Situations

There exists a significant variety of situations in which establishing a duty of care becomes more complicated than simply applying the Caparo test. These situations will often feature in problem questions as a way of testing the completeness of your knowledge, and so it is important to be aware of them.

Liability for Omissions

Whilst a duty of care dictates that a person should not act in a way which causes harm, in general they do not force people to take an act to prevent harm from occurring. Thus, whilst a driver has a duty to not cause an accident through carelessness, they do not have a duty to help those involved in an accident they happen to come across. The principle of non-liability for omissions can be seen at work in Stovin v Wise [1996] UKHL 15. The claimant (Stovin) was injured when was knocked off of his motorcycle by Wise at a junction. Visibility was impaired at the junction by a large bank of earth on the corner. Stovin claimed that the council had a duty to make the junction safe by removing the bank of earth, and that therefore the council was partially responsible for the accident (along with Wise.) The claim failed on the basis that the council had not actively put the bank of earth there, they had simply failed to remove it. This non-liability also extends to warning - there is no general duty to warn someone of a harm.

This principle is reflected in the wider law - outside of specific circumstances (which will be detailed below), there is no duty of care for an individual act to prevent a foreseeable harm. For example, as morally distasteful as it might be, there is no requirement for an individual to save a drowning child from a shallow pond. It is worth taking into account that this is not universally accepted; other jurisdictions (such as France) do include ‘saviour’ or ‘good Samaritan’ laws, dictating that civil, and even criminal liability can exist for failing to act to prevent a harm where it is feasible to do so. There are some exceptions to the rule that an omission to act cannot give rise to claim. The law provides three general groups of scenarios where an individual has a duty to act - where the defendant has control of a situation, where the defendant has assumed responsibility, and where the defendant has created or adopted a risk.

Control situations arise where a defendant has a high degree of control over an individual (and thus is held as owing a duty to exercise that control responsibly. For example, in Reeves v Commisioner of Police for the Metropolis [2000] 1 AC 360 the police were held responsible after an inmate on suicide-watch was able to kill himself, after the custody officer left the hatch open on his cell, allowing the inmate to attach his shirt and use it as a noose. This involved an omission (to close the hatch), but because the police had control over the cells, they had a duty to act.

Control situations also include various relationships of responsibility. Employers have a duty to act to prevent foreseeable dangers from occurring. Thus, in Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 an employer was found to be negligent because it had omitted to fire (or otherwise reign-in) an employee who was known to play dangerous practical jokes on other employees. Because the employer had control of the situation, knew of the danger, and had failed to do anything, it was held liable.

They also include situations involving a carer (such as a parent or teacher) and child. In Carmarthenshire County Council v Lewis [1955] AC 549 a 4-year-old schoolchild was left unsupervised for 10 minutes by a teacher, and consequently left the classroom and walked onto a busy road. A truck driver swerved to avoid the child, hit a telephone pole and was killed. The courts held that the teacher had a duty to act (in this case, to supervise the child). Again, the teacher was in control of the situation and the harm was foreseeable.

In essence, you can ask ‘who is in charge?’ when looking for a control situation. If the answer to that question is ‘the defendant’, then this will be a control situation. Contrast the situation in which a passer-by fails to help a drowning child, and one in which the observer is the person in charge of caring for the child. The public policy reasons for this distinction are relatively intuitive - we want those who take control of a given situation to take responsibility and act competently.

Assumption of Responsibility situations involve, as might be expected, scenarios where one individual implicitly takes on a duty of care by merit of a contract or employment. For example, in Costello v Chief Constable of Northumbria Police [1998] EWCA Civ 1898 a police inspector failed to come to the aid of a police constable who had been attacked by a prisoner in a cell. It was held that by merit of their joint employment, one had a duty of care to the other to act to prevent foreseeable harm from occurring.

It is also possible for a duty of care to arise through a defendant’s actions towards a claimant - as in Barrett v Ministry of Defence [1995] 1 WLR 1217, where a naval officer was held to have assumed responsibility for an extremely drunk pilot after ordering him to be taken to his bed. The pilot was not monitored, and subsequently choked on his own vomit. Again, the naval officer assumed responsibility and then omitted to prevent a foreseeable harm.

There is some overlap between this category and control situations - although the two can usually be distinguished by asking whether the claimant has any say in whether they are controlled (e.g. neither inmates nor children do.) The reasoning behind this category is similarly simple. We want those who take responsibility for a situation to act accordingly, and not to omit their duties.

Creation or Adoption of a Risk situations arise where a defendant creates a dangerous situation (including accidentally.) For example, in Capital & Counties plc v Hampshire County Council [1997] 3 WLR 331 a fire chief decided to turn off a sprinkler on the claimant’s land, worsening a fire. Ordinarily a duty of care would not arise for the fire service to extinguish a fire, but in worsening the situation the service was held to have created an additional risk to the claimant’s property, and thus a duty of care arose to deal with the risk.

Again, this can be seen as quite sensible. We want those who create risks to take responsibility for acting to prevent those risks from occurring. Thus, whilst there is no duty for a passer-by to report a building on fire, there is a duty for someone who sets a building on fire to act to prevent harm.

So, if a problem question asks you to deal with an omission, you should first ask whether it fits into one of these categories. It is important to remember that the Caparo-test still needs to be passed - so defendants do not have a duty to act to prevent unforeseeable harm, there must be a relationship of proximity between the parties, and it must still be fair to impose a duty.

Duty of Care and Third-Party Actors

For the vast majority of cases, the actions of third parties will not impart liability on claimants, and will usually be held as a novus actus interveniens, as per Home Office v Dorset Yacht Co Ltd [1970]. Thus, the general rule is that there is no duty of care to prevent a third party’s actions. However, there are exceptions to this rule, laid down in Smith v Littlewoods [1987] UKHL 18. These exceptions include where there is a special relationship between claimant and defendant, where there is a special relationship between defendant and third party, where the defendant creates a source of danger and where the defendant fails to take steps to deal with a known danger created by a third party.

The first exception involves situations in which there is a special relationship between the claimant and defendant before the tort is committed. The prime example here is Stansbie v Troman [1948] 2 KB 48 - the defendant was instructed to lock up the claimant’s premises after finishing work, and failed to do so. Although it was a third-party who had burgled the premises, there was a pre-existing relationship between the claimant and defendant, and thus the defendant had a duty to lock up the premises as instructed.

The second exception involves another special relationship, but between the claimant and the third party themselves. For example, where a defendant has control over the third party - as in Home Office v Dorset Yacht Co Ltd [1970] UKHL 2, where the defendant (the supervisor of some young offenders) was held responsible for the actions of those offenders after they escaped on his watch. If the defendant had not failed in his role controlling the young offenders, the damage would not have occurred. The supervisor was held to have a duty of care to prevent those in his control from causing damage.

The third exception is situations involving a third party exacerbating a dangerous situation created by the defendant. Consider Haynes v Harwood [1936] 1 KB 146, where the defendant left some horses untethered and unattended. He was held responsible for the damage caused by the horses when a third-party (some children), caused them to bolt. Thus, the defendant had a duty of care to avoid creating a situation which could easily be exacerbated by a third party.

The fourth and final exception is situations where there is a failure by the defendant to abate a dangerous situation created by a third party. If a third party creates a situation which the defendant knows about, and knows that they should do something about, then a duty arises for the defendant to act to negate that dangerous situation. See Clark Fixing Ltd v Dudley Metropolitan Borough Council [2001] EWCA Civ 1898 - where the defendant was aware that a third-party (trespassers) would periodically start fires on their abandoned, unsecured property. They were held responsible when one of these fires spread to a neighbouring property, causing damage. Their duty of care was, thus, based around not dealing with a danger created by others, which could foreseeably do harm.

Duty of Care and Public Service Immunity

Finally, there exists a significant exception to the duty of care principle, when it comes to various public services.

Overall, the stance of the courts is that public services do not have a duty of care towards individuals. This can be thought of in terms of the ‘fair, just and reasonable’ part of Caparo - essentially the courts are remiss to find that public services (e.g. police) have a duty to do a particular thing because this would have a negative effect on those services overall. This includes the problem of making public services more risk averse, for example, a police force which is sued for failing to stop a murderer will be encouraged to put all of its resources into its homicide division, at the cost of other policing services. Furthermore, allowing public services to be sued would cause significant resources to be put into defending the case, reducing the ability of that service to serve the general public. Compensation would be paid out of public service coffers, essentially allowing individual claimants to acquire tax payers’ money.

Police

Whilst the police hold a duty to the public at large, they do not hold a duty to any given individual to detect a crime or a particular criminal. This can be seen in Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049, in which the courts ruled that the West Yorkshire police did not have an actionable duty to detect and detain serial killer Peter Sutcliffe. Lord Keith’s statements at page 5 provide a good run down of the reasons for not imparting a duty of care when public services are involved. It should also be noted that this extends to situations in which the police are aware of an explicit threat. This can be seen in Osman v Ferguson [1993] 4 All ER 344: a teacher became infatuated with one of his pupils, eventually stalking and even changing his name to match that of the pupil. He contacted the police on several occasions, warning them that he would do something dangerous. He eventually shot both the pupil and his father - the pupil survived, the father did not. Despite this, it was held that Hill provided blanket immunity for the police.

Furthermore, the police have no general duty to prevent harm from occurring to individuals. Thus, in Ancell v McDermott [1993] 4 All ER 355 the courts held that in spite of the police knowing about a diesel spill which caused a fatal road traffic accident, there was no duty actionable to make the road safe. The police also have no duty towards any witnesses or victims of crime. Therefore, in Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 the Metropolitan police were held to have no duty to protect, support or assist a witness of the murder of Stephen Lawrence.

However, a duty is imposed in certain specific situations. The police have a duty to ensure firearms access is only given to suitable people, as per Attorney General v Hartwell (British Virgin Islands) [2004] 1 WLR 1273. The police also have a duty to treat confidential information diligently. Thus, a claim was allowed when negligence caused an informant’s identity to be revealed, resulting in threats to the informant.

Local Authorities

The courts also tend to avoid imposing liability on local authorities regarding their decision making. This can be seen in Stovin v Wise (discussed above) on page 8, when Lord Nicholls notes that the courts dictating the actions of a local authority would essentially involve placing tort (and the courts) above the supremacy of Parliament (which ultimately decides what local authorities should and should not do).

Emergency Services

Whilst the presumption will be that there is no duty, the courts have found a duty to arise when ambulance services are promised, but do not arrive in a reasonable time (and have no decent excuse.) In Kent v Griffiths [2000] 2 WLR 1158 an ambulance was promised to someone in respiratory distress, but did not arrive. As a result, the patient went into respiratory arrest whilst waiting. It was noted by Lord Woolf (at 47) that this was an unequivocal failure - an ambulance was freely available, just not promptly dispatched.

As noted above, the emergency services can have a duty imposed if they attend and make a situation worse. This can be seen in Capital & Counties plc v Hampshire County Council (discussed above, in the section on omissions).

Administrators of Justice

Judges and arbitrators cannot be sued for negligent acts committed as part of their work, as per Sirros v Moore [1975] AC 118. It should be noted that whilst this same immunity once extended to barristers and solicitors, this was abolished in Arthur JS Hall v Simons [2000] 3 WLR 543.

Regulatory Bodies

The law regarding regulatory bodies is not especially concrete. If a regulatory body is public, then it is unlikely that the courts will impose a duty. Thus, in Harris v Evans [1998] 1 WLR 1285it was held that a health and safety inspector had no duty towards its clients when it mistakenly told a local authority that a crane used for bungee jumping was unsafe.

The same can be said of private regulatory bodies, if they are acting as if they were a public body. Thus, in Marc Rich & Co AG v Bishop’s Rock Marine Co Ltd, The Nicholas H [1996] AC 211 a shipping classification society misadvised the claimant that a ship was seaworthy. It was not, and the claimant lost their cargo. Nonetheless, the courts refused to impose a duty - the society was essentially fulfilling a state role; without it, the Government would have to create its own regulatory body to evaluate ships, and so the courts provided the society with public body immunity.

However, this rule appears to not apply when physical harm is involved. In Perrett v Collins [1998] 2 Lloyd’s Rep 255 a private association misevaluated the safety of a light aircraft, which subsequently crashed, injuring the claimant.

Thus, the first question which should be asked is whether a body is public - if so, then it will likely be given duty immunity. If it is private, but acting in a quasi-public capacity, then this immunity will also likely be applied, unless physical harm is involved.

Armed Forces

Finally, the armed forces enjoy immunity from the imposition of duties of care, but only in situations involving negligence in battle conditions, as per Mulcahy v Ministry of Defence [1996] QB 732. The reasoning here is relatively obvious: we want the military to operate with relative freedom, rather than worrying about tortious liability.

Special Claimants

Finally, there are certain set situations in which a duty of care will be imposed, even if it would traditionally be legally unfeasible.

Pre-natal Injuries

Ordinarily, a foetus’s lack of legal personhood would prevent a duty of care from arising between a tortfeasor and the foetus. However, negligent acts can and do affect foetuses, who are negatively affected once born. As per Burton v Islington Health Authority [1993] QB 204, the duty of care can be thought of as existing in limbo, until the time of the child’s birth, at which point it comes into proper existence. Note: because it depends on birth, there is no duty of care between a tortfeasor and a foetus which never comes to term, as per the Congenital Disabilities (Civil Liability) Act 1976.

Rescuers

Rescuers also have special protection under the law. Ordinarily, those who come to the scene of a negligent accident would not be owed a duty of care from the tortfeasor by reason of proximity. Instead, the courts regard there to be sufficient proximity between the two - indeed, there is a policy argument to be made for protecting those who altruistically come to the aid of those in need. This extends to those rescuing in a professional capacity, and thus in Ogwo v Taylor [1988] AC 431 the defendant was held liable for the injuries of a fireman who was attempting to fight a negligently started fire. It should, however, be noted that foreseeability of injury still applies - thus, in Crossley v Rawlinson[1982] 1 WLR 369 it was held that no duty existed between a defendant and a rescuer who tripped and fell with a fire extinguisher when attempting to tackle a blaze.

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