Prepared by: Ms Suloshiny Segaran

The tort of negligence has been usefully

defined as:

“… a breach of a legal duty to take care

which results in damage to the claimant” –
W.H.V Rogers, Winfield and Jolowicz on
Tort, 18th edition.
Defendant owes the Claimant a duty of care

Defendant has acted in breach of that duty, and

As a result, the claimant has suffered damage which is

not too remote a consequence of the defendant’s
breach
Courts have struggled to determine the proper scope of negligence, hence they have used
each of its three ingredients : duty, breach and causation – as CONTROL MECHANISM to
set limits to the tort.
Establishing duty of care is the first step/hurdle a claimant must overcome

Most situation, it will be obvious based on previous established precedents that the defendant
does owe the claimant a duty of care.

Problem? – When there is a novel situation which does not have existing authority.
 Driver- Driver-
Doctor-patient
passenger pedestrian

Occupier-
Employer- Occupier- trespasser (in
employee visitor limited
circumstances)
 DEVELOPMENT OF THE LA
 Pre-1932 – case to case basis – courts looked
at the relationship between the parties – the
expectations and obligations of that
relationship and decided based on common
sense, logic and the sense of justice
 The case concerned a defective product – a bottle of ginger beer – at the bottom of
which was a decomposed snail, invisible to the consumer of the product because
the glass was opaque.
 The person who consumed the ginger beer was not the purchaser of the beer, so
suffered no financial loss and had no contractual remedy.
 But she did suffer damage – physical damage – gastroenteritis, in fact.
 The question, then, was whether she had any remedy for her loss.
 If any remedy was to be found it would be in the area of law governing liability for
careless conduct – a very under-developed area of law.
 The House of Lords, in a landmark decision, concluded that the claimant could
recover damages for her loss.
 To the question whether the manufacturers owed the particular claimant a duty to
take reasonable care in the manufacture of the product to ensure that products are
safe, the Court replied in the affirmative, stating in summary that a manufacturer of
goods which are intended to reach the ultimate consumer without opportunity for
intermediate inspection owes a duty to ensure that the product does not cause
injury.
Lord Atkin:

… in English Law there must be, and is, some general conception of relations
giving rise to a duty of care, of which the particular cases found in the books are
but
instances… acts or omissions which any moral code would censure cannot in a
practical world be treated so as to give a right to every person injured… to demand
relief. In this way rules of law arise which limit the range of complainants and the
extent of their remedy…
The rule that you are to love your neighbour becomes in law, you must not injure
your neighbour; and the lawyer’s question, Who is my neighbour? receives a
restricted reply.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 in question.
 The concept of duty expanded under the neighbour principle
 New relationship were identified where a duty of care was held to exit which led to
the expansion of law into areas where previously no liability existed.
 This led to a large body of case law which gradually acted as precedent in similar
factual situations
 Factors other than proximity and foreseeability started to influence the courts
decisions on whether a duty of care arose in any given case
 One such factor which was influential but controversial was ‘policy’.
 The role and place of policy in negligence was considered by the courts in Anns v
Merton London Borough Council
LORD WILBERFORCE’S “TWO STAGE
By the late 1970s, however, it began to be felt


TEST” that the Atkin test was not sufficient.

The reason for concerns over the limitations of

the Atkin formula was increasing recognition
that claimants were suffering damage of a type
that raised more complicated questions than did
traumatic physical injury – the most common
form of injury suffered as a result of careless
conduct when the duty test was first formulated.
 Economic losses resulting from negligent acts or
negligent misstatements were particularly
troubling at that time and it was felt that the twin
concepts of foresight and proximity were
insufficient in the face of such losses to enable
the duty test to perform its primary function of
limiting liability for negligently occasioned
injury or loss.
 Another element needed to be added to the Atkin test
to allow the duty concept to continue to perform well
as a limiting mechanism.
 Courts held that whether a duty existed was not merely a matter of precedent but a
matter of general principle
 Lord Wilberforce identified this general principle as being a two-stage test

Two-fold test

First Stage Second Stage

Neighbour principle – the need to Policy considerations

establish foreseeability & proximity Capable of excluding or limiting the
Creates a prima facie duty of care scope of liability
In this test, the courts do not assume a duty of care and then consider, as a matter of policy, whether in

Rather, the policy question of whether certain types of damage should be recoverable in certain circum
 The two stage test went on to allow a more generous approach to the duty of care
issue – a presumption that a duty of care would exist unless clear policy objections
could be found.
 More ‘novel’ negligence cases were successfully litigated. Indeed, during the
period that Anns remained authoritative, liability in tort did expand towards pure
economic loss, negligently inflicted.
In light of the growing concerns of
Ann’s expansion, it was overruled
by the House of Lords
 House of Lords adopts the ‘three-stage test’ or the ‘singular composite test’ for duty
of care
Three-fold test/ Singular composite test

First Stage Second Stage Third Stage

Foreseeability Proximity Just, fair and reasonableness

First, determine whether the case falls within an existing category (traditional
category) where a duty exist
If yes then, then following precedent a duty would exit on the facts before the judge
If no then, the case is a novel one in which case the three-stage test/singular
composite test can be employed
However, cautioned Lord Bridge, the test is merely a convenient label
Whether a duty of care exist will ultimately depend on all the circumstances of the
case
 According to Lord Bridge and Lord Oliver (in Caparo), judges should not seek ‘a
single general principle’ underlying the duty of care but rather should develop
the duty of care incrementally. Approving an Australian High Court judgment:

It is preferable, in my view, that the law should develop novel categories of negligence
incrementally and by analogy with established categories, rather than by a massive
extension of a prima facie duty of care restrained only by indefinable 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
  Judges (when faced with a question
WHAT IS INCREMENTALISM? about whether a duty should be imposed
or not in a given case) will be guided by
underlying general principles –
foresight and proximity – but,
additionally, to the existence of these
general principles must be added some
relation or analogy between the situation
or circumstance giving rise to harm or
other loss that is before the judge and a
situation that had in the past been
judged to be one to which a duty of care
should attach itself.
 The ability to foresee harm to the claimant as a result of one’s actions or inactions
 Foreseeability is determined objectively
Palsgraf v Long Island Railway: where it was held that it was not foreseeable
that the negligent act of pushing a passenger would injure someone standing
several feet away.
Legally proximity means closeness in relationship between the defendant and the
claimant

Closeness in relationship does not however mean that the parties must know each other or be related to one another but r

There must be proximity in the sense of a measure of control over, and responsibility
for, the potentially dangerous situation.

e.g. Relationship between a manufacturer and a consumer

3. JUST FAIR AND REASONABLE
 Embodies the considerations of policy
 The requirement not only anchors the notion
that ultimately justice must prevail but also
seeks to set sensible limits on the parameters
of liability
 A number of policy factors influence the
decision of the courts
 Loss allocation - ultimately liability is likely
to tilt towards the party who is in a better
position to bear its cost.
 Practical consideration - who may be in the
best position to prevent future liability
 The fear of opening the floodgates of
litigation often looms large over many
decisions of the court
Hill v Chief Constable of West Yorkshire [1989]
 The claim was brought by the estate of Jacqueline
Hill, the last victim of the mass murderer Peter
Sutcliffe, known as the ‘Yorkshire Ripper’.
 The claim for damages was made on the basis
that the police had negligently failed to
apprehend the murderer before the victim was
killed.
 Notwithstanding that harm was reasonably
foreseeable, the House of Lords held that there was
insufficient proximity between the police and the
victim.
 Public policy was also a factor in this decision.
Their Lordships stated that a general duty of care to
protect all members of the public from the
consequences of crime would be impracticable
and, on grounds of public policy, deeply damaging
to police operations
Marc Rich & Co v Bishop Rock Marine Co Ltd [1995]
 A vessel, ‘The Nicholas H’, developed a crack while carrying a cargo from South
America to Italy.
 A surveyor employed by a marine classification society pronounced that, with
temporary welding work, the vessel was fit to complete the voyage.
 A few days later the ship sank with a total loss of the cargo.
 The damage was physical harm (for which a duty is normally owed upon foresight
of harm) rather than pure economic loss resulting from the surveyor’s negligent
statement that the vessel was seaworthy
 In Marc Rich, it was held that despite
there being foreseeability and proximity
it was not fair just and reasonable for the
classification society to be held liable to
the owners of the cargo.
 classification societies were
independent non-profit making entities,
operating for the sole purpose of
promoting the collective welfare, namely,
the safety of ships and lives at sea; a
finding of liability might lead to
classification societies adopting a more
‘defensive position’.
 Insurance would be added as well
 Watson v British Boxing Board of
Control [2001] –
 Where the defendant was a non-profit
organisation, like the defendant in
C/F MARC’S CASE WITH WATSON
Marc Rich where the courts
considered it a significant factor to deny
a duty, this was not a significant factor in
Watson’s case.
 Watson was a unique case, boxing
involved the intentional infliction of
harm, the role of the Board was reduce
the effect of those injuries once they
occurred – the claimant relied on them.
 Therefore in all the circumstances it was
fair, just and reasonable to impose a duty
of care.
Darnley v Croydon Health Services NHS Trust [2017]
 In this case the courts was asked to consider whether a patient, who
was wrongly informed by a civilian receptionist at the A & E of
estimated waiting time, had a cause of action.
 Should a civilian, non-medically trained receptionist, owe a duty of
care and be accountable for the inaccurate information she
provided?
 The Court of Appeal held that it was not fair, just and reasonable to
impose a duty of care on the receptionist.
 The court decided that there was no general duty upon receptionists
to keep patients informed about likely waiting times. Their function
was to record new arrivals, tell them where to wait and pass on
relevant details to the triage nurse.
 It was not their function to give any wider advice to patients and
although foreseeability and proximity was present, it was not fair,
just or reasonable to extend their responsibility in this way.
 Litigation about what was said in A&E departments could proliferate
and healthcare providers might react by telling receptionists to do
nothing other than ask patients for details. That would be
undesirable.
Supreme Court - Darnley v Croydon Health Services
NHS Trust [2018] UKSC 50
 The Supreme Court allowing an appeal on the Court of
Appeal decision held that it was inappropriate to
separate medical from reception staff because, whilst it is
not the function of reception staff to give wider advice or
information in general to patients, it is the duty of the NHS
Trust to take care not to provide misinformation to
patients and that duty is not avoided by the
misinformation having been provided by reception staff
as opposed to medical staff.
 The Court held that the standard to be applied is that of
an averagely competent and well-informed person
performing the function of an A & E department
receptionist and therefore, it is not unreasonable to
require receptionists to take reasonable care not to
provide misleading information as to the likely
availability of medical assistance as responding to
requests for information as to the usual system of
operation of the A & E department was well within the
area of responsibility of the receptionists.
 The Court concluded that causation was
established as the appellant’s decision to
leave was reasonably foreseeable and
was made, at least in part, on the basis of
the misleading information that he would
have to wait for up to four or five hours
before being seen by a doctor.
Hedley Bryne v Heller & Partners
 Duty of care was established in a case
concerning negligent statements using the
test of voluntary assumption of
responsibility and reliance
 In 1995 the above test was extended. Lord
Goff in Henderson v Merrett held that the
test was a general principle of law
applicable across the board
 The test is today known as the Extended
Hedley Byrne principle and has been
relied upon by the courts to determine
duty of care in a broad range of cases.
Burgess v Lejonvarn [2017] COA
• For about 10 years prior to the events giving
rise to this dispute, the claimants (the
Burgesses) and the defendant (Mrs
Lejonvarn) were good friends.
• The claimants believed the quote in excess
of £150,000 plus VAT from a wellknown
landscape gardener to carry out earthworks
and hard landscaping to be too expensive
and they sought professional assistance
from their friend and former neighbour, the
defendant.
• The defendant secured the contractor to
carry out the work with the intention that
she would provide subsequent design
input, for which she would charge a fee.
• However, the project went badly and the
Burgesses sued Mrs Lejonvarn both in
contract and in tort.
 The court found it quite impossible to
find any clear form of offer or
acceptance and concluded that
there was no contract between the
parties.
 However, the claim in tort was successful.
 Although there was no contract, and the
parties were personal friends, when Mrs
Lejonvarn agreed to use her special skill
in landscape architecture to provide a
service for the Burgesses, she had
assumed a duty to perform this with
reasonable care and skill.
 Case arose out of a routine drug bust on the streets of Huddersfield. One of the
police officers involved had seen the suspect apparently dealing drugs in a
park and called for backup with a view to making an arrest.
 By the time the backup arrived, the suspect was standing in a busy street in front of
a bookmakers he had just visited.
 Two of the four officers now on the scene attempted to effect an arrest, but the
suspect resisted, and in the ensuing tussle, the claimant passer-by, a relatively frail
woman of 76, was knocked over and injured.
 The claimant brought a negligence claim for her personal injuries against the
police, which was dismissed by the Recorder. The Recorder found that the officers
conduct had exposed the claimant to a foreseeable risk of injury, and also that
the officers had acted negligently in carrying out the arrest.
 Nevertheless, the Recorder held that the police were not liable, since the
decision of the House of Lords in Hill v Chief Constable of West Yorkshire
(Hill) had conferred on them an immunity from suit in negligence, which
extended to the facts of this case.
  The claimants appeal was dismissed
by the Court of Appeal. Lady Justice
Hallett applied the so-called Caparo
test.
AT THE COURT OF APPEAL..  The court felt that on the basis of the
third stage of test, a court would only
impose a duty where it considers it right
to do so on the facts.
 And this would rarely be the case where
the police were sued for negligence in
respect of their conduct in the course of
investigating and suppressing crime and
apprehending offenders, since the
courts had concluded that the interests
of the public would not be best served
by the imposition of a duty of care in
such cases
Hallett LJ argued,

‘provided the police act within reason, the public

Michael v Chief Constable of South Wales Police (2015) (UKSC)
 The claim in Michael arose out of the murder of a young woman by her former
partner, which it was alleged could have been prevented if the police had
responded appropriately to an emergency call the deceased had made shortly
before she died.
 The ultimate ruling in favour of the police defendants was based on two main
points.
1. There was not a duty of care owed
because the situation did not fall
under any of the exceptions to the
basic rule against tort liability for
omissions – specifically, the call
handler had not said anything to the
deceased that indicated a particular
assumption of responsibility for her
safety
2. Duties owed under the Human Rights
Act are owed to the public at large and
do not automatically give rise to
individual actions in private law
 In this case Lord Toulson, with whom the other
members of the Supreme Court agreed, referred
to Lord Bridge’s warning in Caparo that the
concepts of proximity and fairness “were not
susceptible of any definition which would make
them useful as practical tests, but were little more
than labels to attach to features of situations
which the law recognised as giving rise to a duty
of care".
 The ‘three-fold’ test in Caparo was not intended
to be a ‘blueprint for deciding cases’.
 Neither did he believe that the concept of
‘immunity’ was helpful in such police cases; this
was nothing more than an application of the
general principle that a person should not be
liable for failing to control the actions of another
 In the Supreme Court Lord Reed, (with whom Baroness Hale and Lord Hodge
agreed) said:
“The proposition that there is a Caparo test which applies to all claims in the modern
law of negligence, and that in consequence the court will only impose a duty of care
where it considers it fair, just and reasonable to do so on the particular facts, is
mistaken.”
 Referred to Lord Toulson’s statement from Michael
 Lord Reed in his judgment came up with
the right approach in establishing
whether a duty of care exists:
 In cases of established principles,
once the decision has been made that
a duty of care is owed, then that
decision will apply to all future cases
of the same kind.
As for novel cases, where the courts must
go beyond established principles to
determine whether a duty of care was
owed:

“Following the Caparo case, the

characteristic approach of the common law
in such situations is to develop
incrementally and by analogy with
established authority. The drawing of an
analogy depends on identifying the legally
significant features of the situations with
which the earlier authorities were
concerned. The courts also have to exercise
judgement when deciding whether a duty
of care should be recognised in a novel
type of case.”
 In the ordinary run of cases, courts consider what has been decided previously
and follow the precedents (unless it is necessary to consider whether the
precedents should be departed from).
 In cases where the question whether a duty of care arises has not previously been
decided, the courts will consider the closest analogies in the existing law, with a
view to maintaining the coherence of the law and the avoidance of in appropriate
distinctions. They will also weigh up the reasons for and against imposing liability,
in order to decide whether the existence of a duty of care would be just and
reasonable
 The proposition that there is a Caparo test which applies to all claims in the
modern law of negligence, and that in consequence the court will only impose a
duty of care where it considers it fair, just and reasonable to do so on the
particular facts, is mistaken. As Lord Toulson pointed out in his landmark judgment
in [Michael], that understanding of the case mistakes the whole point of Caparo,
which was to repudiate the idea that there is a single test which can be applied in
all cases in order to determine whether a duty of care exists, and instead to adopt
an approach based, in the manner characteristic of the common law, on precedent,
and on the development of the law incrementally and by analogy with established
authorities.
The existence of a duty of care does not depend on the application of a
‘Caparo test’ to the facts of the particular case; it depends on the application
of established principles of the law of negligence.

We are back to the incremental approach approved in the case of Caparo.