TORT LAW · FREE QUIZ
Negligence: duty of care
Level: A-level Law and LLB
To win a negligence claim, the claimant must prove that the defendant owed them a duty of care, breached it, and caused damage that is not too remote. These notes cover each stage with the leading cases for A-level Law and first-year tort, followed by a free quiz.
Duty of care
The modern law starts with Donoghue v Stevenson (1932), the snail in the ginger beer bottle. Lord Atkin's neighbour principle says you must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour: people so closely and directly affected by your act that you ought to have them in mind.
Caparo Industries v Dickman (1990) set out three questions: was the damage reasonably foreseeable, was there sufficient proximity between the parties, and is it fair, just and reasonable to impose a duty?
Robinson v Chief Constable of West Yorkshire Police (2018) clarified that Caparo is not a test to apply in every case. Where a duty is already established, such as driver to other road users or doctor to patient, follow precedent. The Caparo factors guide the courts in genuinely new situations, where the law develops incrementally by analogy with existing cases.
Breach of duty
The standard is objective: what would a reasonable person have done (Blyth v Birmingham Waterworks (1856))?
- Learners are judged as competent people: a learner driver must meet the standard of a reasonably competent driver (Nettleship v Weston (1971)).
- Professionals are judged against a responsible body of professional opinion (Bolam v Friern Hospital Management Committee (1957)), which must be capable of withstanding logical analysis (Bolitho v City and Hackney Health Authority (1997)).
- Courts weigh the probability of harm (Bolton v Stone (1951)), the seriousness of harm (Paris v Stepney Borough Council (1951)), the cost of precautions (Latimer v AEC (1953)) and the social value of the activity (Watt v Hertfordshire County Council (1954)).
Causation and remoteness
- Factual causation uses the 'but for' test. In Barnett v Chelsea and Kensington Hospital Management Committee (1969) the doctor's failure to examine the patient did not cause his death, because he would have died of arsenic poisoning anyway.
- Remoteness: the defendant is liable only for damage of a reasonably foreseeable kind (The Wagon Mound (No 1) (1961)).
- If the kind of damage is foreseeable, the defendant takes the claimant as they find them (Smith v Leech Brain (1962)).
Omissions and third parties
There is generally no liability for pure omissions or for harm caused by third parties (Smith v Littlewoods (1987)). Public bodies such as the police usually owe no duty to protect individuals from harm caused by others unless an exception applies (Michael v Chief Constable of South Wales Police (2015)).
Test yourself
8 questions. Tap an answer to see whether you're right, and why.
Q1/8Which case established Lord Atkin's neighbour principle?
Donoghue v Stevenson, the snail in the ginger beer bottle, is the foundation of the modern duty of care.
Q2/8The three stages of the Caparo test are:
Caparo v Dickman (1990) asks whether harm was foreseeable, whether there was proximity, and whether it is fair, just and reasonable to impose a duty.
Q3/8According to Robinson v Chief Constable of West Yorkshire Police (2018), the Caparo factors should mainly be used:
Established duty situations follow precedent. Caparo guides the courts when a situation is genuinely new.
Q4/8A learner driver injures a pedestrian. Under Nettleship v Weston (1971), the learner is judged against:
The standard is objective and does not drop for inexperience.
Q5/8The Bolam test asks whether a doctor:
Bolam (1957) is the test for professionals. Bolitho (1997) adds that the body of opinion must stand up to logical analysis.
Q6/8In Barnett v Chelsea and Kensington HMC (1969), the hospital was not liable because:
A duty was owed and breached, but the claim failed the 'but for' test.
Q7/8The Wagon Mound (No 1) (1961) decided that a defendant is liable for damage that is:
It replaced the direct consequence test from Re Polemis with reasonable foreseeability of the kind of damage.
Q8/8In Bolton v Stone (1951), cricket balls had been hit out of the ground about six times in 30 years. The club was not in breach mainly because:
A reasonable person does not have to guard against a risk that is so unlikely.
Questions
What are the elements of negligence?
A duty of care, a breach of that duty, and damage caused by the breach that is not too remote.
Is the Caparo test still used?
Yes, but since Robinson v Chief Constable of West Yorkshire Police (2018) mainly for novel situations. Established duties follow precedent.
Practising a negligence problem question? Get your answer marked.
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