1. Duty of Care
The first thing to keep in mind is that Donoghue v Stevenson gave us a new tort — the tort of negligence. In this new tort, 'duty of care' is the primary factor in determining whether compensation attaches to a negligent act. To bring a successful negligence claim, the claimant must prove from the outset not only that the defendant's negligent actions caused the claimant damage, but also that the defendant owed a duty of care in the first instance. For this reason, duty of care is sometimes called a control mechanism.
2.1.1 Established Duty of Care
If the parties are in a relationship in which there is an established duty of care, one does not need to discuss whether a duty of care exists at all. Some of the relationships in which an established duty of care is accepted are set out below. If there is no established duty of care, the court applies the modern tests to determine whether a duty arises.
Employer to employee
Teachers to students
Doctors / dentists to patients
Transport operators to passengers
Driver and pedestrian
Manufacturers to consumers
2.1.2 How to Establish a Duty of Care?
2.1.2.1 The Neighbour Test: Donoghue v Stevenson
| Case | Facts and significance |
|---|---|
| Donoghue v Stevenson [1932] | Mrs Donoghue and her friend were at a café in Paisley, Glasgow. Mrs Donoghue's friend bought her a ginger beer. The ginger beer came in an opaque bottle and the drink was not visible from the outside. Mrs Donoghue drank some of the ginger beer and her friend poured the remainder into her glass. At this point the remains of a decomposed snail dropped out of the bottle. Mrs Donoghue sued the manufacturer of the beer for the gastroenteric health problems and emotional shock she suffered. At that time, the common law of England provided her with no remedy because Mrs Donoghue was not the owner of the drink, as she had not bought it herself. Nevertheless, Lord Atkin gave one of the most ground-breaking rulings in the common law and changed tort law forever. |
In Donoghue v Stevenson, Lord Atkin established the principle that a defendant owes a claimant a duty of care if there is a relationship of 'neighbourhood', in the sense that the claimant can be reasonably foreseen as likely to be affected by the defendant's act. Do not be confused by the name: a neighbour can be anyone who would be so closely and directly affected by one's actions that one should have them in mind when making decisions.
This test identifies the person to whom a duty of care may be owed, but it gives only a narrow window for assessing when or in which circumstances the duty is owed. The neighbour test was novel for its time and was used as the sole test for a while, but it was not enough to evaluate every situation. To decide whether the duty of care exists, more case law evolved over the years.
2.1.2.2 Three-Stage Test: Caparo Industries plc v Dickman
A new approach was adopted by the court later in Caparo Industries plc v Dickman [1990]. In that case, Lord Bridge made it clear from the outset that there is not only one test to assess whether a duty of care exists. Lord Bridge set out that courts should use two approaches when considering whether there is a duty of care:
1) incrementally and by analogy; and
2) a three-stage test (the 'Caparo test').
The first approach states that if a duty of care has been found to exist by looking to precedents decided previously, or where the situation is analogous to one in which a duty of care has been found, the court will use those to evaluate the existence of the duty. However, if those are not present, the court will use the second approach, the three-stage test.
2.1.3 Tenets of the Three-Stage Caparo Test
2.1.3.1 Foreseeability
The 'foreseeability' requirement is not new — it is taken from the neighbour principle of Donoghue v Stevenson. The foreseeability test asks whether the defendant failed to take reasonable care to avoid acts potentially harmful to those a reasonable person would have foreseen as likely to be adversely affected by such action.
2.1.3.2 Proximity
The 'proximity' requirement is mostly embodied within the foreseeability test and will not usually require separate consideration from the courts. In brief, this tenet speaks of a certain degree of connection between the claimant and the defendant.
2.1.3.3 Fair, Just and Reasonable
The third and final requirement of the Caparo test is that the liability should be 'fair, just and reasonable'. What the court considers fair, just and reasonable is influenced by questions of policy. The court will weigh a number of policy issues, the first being the floodgates argument: it will evaluate in each case whether establishing a duty situation would 'open the gates' and let a legal flood of claims in — in other words, whether it would create a potentially large number of unwarranted claims.
2.1.4 A Reaffirmation of the Caparo Test: Robinson v Chief Constable of West Yorkshire
In 2018, the Supreme Court issued a decision and reiterated that the Caparo test should be applied to novel situations only.
| Case | Facts and significance |
|---|---|
| Robinson v Chief Constable of West Yorkshire [2018] | The claimant was a senior pedestrian enjoying her time in a busy street in the city centre. While she was walking in the street, she was injured during an attempted arrest by police officers. The Supreme Court held that the police, in this case, did owe the claimant a duty of care because they had actively created a risk of harm and had foreseen that such harm might well result from their actions. The Court made it clear that it was applying normal common law principles of negligence, from which the police were not immune, reasoning incrementally and by analogy rather than mechanically applying Caparo. |
2.1.5 Revision
When answering questions on duty of care, the following steps may help you evaluate the facts to decide whether the duty of care exists.
Step 1 — Established duty? The duty of care may already be established — for example, the duty owed by doctors to patients, teachers to students, or employers to employees.
Step 2 — Precedent or analogy? If there is no established relationship, the court considers whether there is an existing precedent. If so, that precedent is used to evaluate whether a duty is owed. If not, the court reasons by analogy between the present case and similar cases.
Step 3 — Caparo test (novel situations). If neither the incremental nor the analogical approach helps, the court applies the three-stage Caparo test (foreseeability of harm, proximity between the parties, and whether it is fair, just and reasonable to impose a duty of care).
2.1.6 General Rule: No Liability for Omissions to Act in Tort Law
In English law there is generally no duty to act to help someone or to prevent injury. This means there is no duty owed for a failure to act (omissions) and the law imposes no liability. The classic example is the drowning person: tort law would not impose liability on someone who could rescue a drowning person but chose not to do so.
2.1.6.1 Exceptions
The de facto rule is that the law does not impose a duty of care for an omission unless the parties are in a relationship giving rise to such a duty. There is no definitive categorisation of when a duty to act is recognised. The following factors were set out as indicators of a duty of care in cases of omission by Lord Goff in Smith v Littlewoods Organisation Ltd [1987]:
Where there is a relationship between the parties which creates an assumption of responsibility on behalf of the defendant for the safety of the claimant.
Where there is a relationship of control between the defendant and a third party who causes the damage.
Where the defendant creates or permits a source of danger to be created.
Where there is a failure by the defendant to remove a source of danger of which it is aware.
2. Breach of Duty
A defendant must not only owe the claimant a duty of care but must also have violated that duty in order to be held liable for negligence. The defendant is at fault if they fail to perform the duty to the legal standard demanded by the law. To determine whether a defendant has breached a duty of care, the court applies a two-stage test: first it considers how the defendant should have acted in the circumstances (a question of law); then it considers whether the defendant's actions fell below that standard (a question of fact).
2.2.1 The Standard of Care
To determine whether there has been a breach of the duty of care, the defendant's actions are compared to the minimum level of care required. According to Blyth v Birmingham Waterworks (1856) 11 Exch 781, Alderson B set out the classic definition of negligence as 'the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do'.
2.2.1.1 The 'Reasonable Person' Test
The reasonable person test is a standard of conduct used to determine whether behaviour is reasonable. It applies in a wide range of legal contexts, including contract law, tort law and employment law. The test promotes objectivity: without it, standards might diverge excessively, since what one person deems 'reasonable' another might deem 'unreasonable'. In practice, the court asks how a reasonable person would have behaved in circumstances similar to those the defendant faced at the time of the alleged negligence. Courts will usually seek the opinion of experts to assist with this.
2.2.1.2 Special Standard for Children
A young defendant must demonstrate the same level of diligence as would be expected of a typical person of the same age, intelligence and experience. There is no specific age below which a child cannot be held accountable for negligence, but extremely young children are rarely found liable. The ability to consider and anticipate danger may be a determining factor when looking at age. A person under the age of 18 cannot be sued without an adult acting as their legal representative, known as a litigation friend (typically a parent).
| Element | Detail |
|---|---|
| Facts | The defendant, a 15-year-old girl, engaged in a play fight with another 15-year-old girl (the claimant) using rulers. During the game the defendant's ruler broke, sending a splinter into the claimant's eye and blinding her. The claimant brought a negligence claim against the defendant. |
| Decision / Outcome | The Court of Appeal held that the defendant had not breached the duty of care she owed to the claimant. |
| Principle | A child is only to be held to the standard of a reasonable child of the same age, not to the standard of a reasonable adult. A reasonable 15-year-old in this situation would not have taken any additional precautions, as they would not have anticipated injury from the game. The defendant therefore did what a reasonable youngster would have done and did not breach the duty. |
2.2.1.3 Special Standard for Skilled Defendant
When someone exercises a specific skill, they are not held to the standard of the average person, because the average person does not claim that expertise. Instead, they are judged against the level of competence expected of someone with that specific skill. A defendant's acts should not be deemed negligent if they are supported by a credible body of expert opinion. However, the ultimate determination of whether a skilled defendant acted reasonably rests with the court, not with the profession.
| Element | Detail |
|---|---|
| Facts | The defendant was the organisation that employed a physician who did not administer muscle relaxants or place the claimant — a patient suffering from mental illness — under restraint before administering electroconvulsive therapy. The procedure caused the claimant injuries. The claimant sued, claiming the doctor was at fault for not restraining them or administering medication. |
| Decision / Outcome | The action was tried before McNair J sitting with a jury, who returned a verdict for the defendant: the doctor had not breached his duty to the patient and the defendant was not liable. |
| Principle (the Bolam test) | Developed by McNair J: a professional will not be in breach of their duty of care if they behaved in a way consistent with standards accepted as proper by a responsible body of other medical professionals skilled in that particular field. The existence of experts who would disagree with the practice is irrelevant, provided a responsible body approves it. |
2.2.1.4 Special Standard for Under-Skilled Defendant
Even on their very first drive, a learner driver is expected to meet the standard of a reasonably competent driver. The insurance provider shares the additional risk a trainee introduces to other road users, so this choice contains a policy component. A defendant who does not claim a particular professional skill may not be held to a higher standard, but they must still meet the minimum standard of the task at hand; and if they attempt an activity requiring a specialised skill set they lack, they are likely to be found to be acting carelessly.
| Element | Detail |
|---|---|
| Facts | The claimant was the defendant's friend and was instructing the defendant in driving. Before the arrangement, the claimant had asked for assurances that proper insurance had been bought in case of an accident. In the third session, while performing an easy manoeuvre, the defendant panicked, causing the car to crash into a lamppost and injure the claimant. The defendant was later convicted of careless driving. The question arose: should the defendant be held to the same standard as any other driver? |
| Decision / Outcome | The case turned on three conclusions: (1) the defence of volenti non fit injuria was inapplicable (a common law doctrine that a person who willingly places themselves in a position of possible harm, knowing the risk, cannot later sue in tort); (2) the duty of care owed by a learner driver to the public (including passengers) is judged against the same standard as any other driver; and (3) the learner and instructor were jointly at fault, so a 50% reduction in damages for contributory negligence was appropriate. Following Dann v Hamilton and Slater v Clay Cross Co Ltd, the defendant had failed to 'measure up to the standard of care that the law requires'. |
2.2.2 Relevant Factors in Determining Whether the Defendant Has Achieved the Required Standard of Care
The standard against which the defendant's conduct is measured is that of the reasonable person. In determining the degree of care expected, the courts take into account all the circumstances of the case. In general terms, in assessing whether a defendant has fallen below a reasonable standard of care, the court weighs up: (i) the risk created by the defendant's activities; and (ii) the precautions the defendant ought reasonably to have taken in response to that risk.
There are various criteria that are always significant and may be used by the courts as guides to determine fault, including:
Common practice
Cost and practicability of precautions
The current state of knowledge
The defendant's purpose
The magnitude of the risk
2.2.3 Proving Breach of Duty
It is the claimant's responsibility to demonstrate that the defendant violated the duty of care, in order to establish negligence 'on a balance of probabilities' — that is, that the defendant's breach was more likely than not. The most common route to proving breach is through expert or witness testimony from those who witnessed the accident in question.
2.2.4 Res Ipsa Loquitur
3. Key Notes (Chapter Summary)
The following summary table consolidates the key terms, concepts and authorities examined in this chapter. Treat it as a revision checklist — you should be able to state each item and its leading case from memory.
| Key Items | Concepts | Cases / References |
|---|---|---|
| Duty of Care | Primary factor in the tort of negligence; must be established for a claim to proceed. | Donoghue v Stevenson [1932] |
| Established Duty of Care | Relationships where a duty of care is automatically accepted. | Employer to employee; doctors to patients |
| Neighbour Test | Determines who may be owed a duty of care, based on foreseeability and the 'neighbourhood' principle. | Donoghue v Stevenson [1932] |
| Caparo Test | Three-stage test for establishing a duty of care: foreseeability, proximity, and fairness (fair, just and reasonable). | Caparo Industries plc v Dickman [1990] |
| No Liability for Omissions | Generally, no duty to act to prevent harm (subject to exceptions per Lord Goff). | General rule in English law; Smith v Littlewoods Organisation Ltd [1987] |
| Breach of Duty | Violation of the established duty of care. | — |
| Standard of Care | Level of care that a reasonable person would have exercised in similar circumstances. | Blyth v Birmingham Waterworks (1856) |
| Special Standards | Different standards for children and professionals (and learners/under-skilled defendants). | Mullin v Richards [1998]; Bolam v Friern Hospital Management Committee [1957]; Nettleship v Weston [1971] |
| Proving Breach of Duty | Claimant must prove, on a balance of probabilities, that the defendant breached their duty of care. | — |
| Res Ipsa Loquitur | Where the thing causing harm was in the defendant's control, the accident would not normally happen without negligence, and the cause is unknown, an inference of negligence may be raised. | Scott v London and St Katherine Docks Co (1865) |
4. MCQ Practice — SQE-Style Questions
Each of the following questions mirrors the style, length and difficulty of the SQE1 FLK1 single best answer questions. Attempt each question closed-book, write down your answer, then turn to the answer key. The answer key explains why each option is correct or incorrect — read every explanation in full.
A. Doctor and patient.
B. Driver and pedestrian.
C. Teacher and student.
D. Solicitor and client.
E. Managing agents of landlords and tenants.
Answer & explanation
E is correct — the relationship between managing agents and tenants is not one of the recognised categories in which a duty of care is automatically established. There is no settled, established duty owed by managing agents to tenants; whether such a duty arises would have to be analysed on the facts (reasoning incrementally and by analogy, or, if the situation were novel, by applying the Caparo three-stage test). It is therefore the relationship that does not represent an established duty of care.
A is incorrect — doctor and patient is a classic established duty of care.
B is incorrect — driver and pedestrian is an established duty of care.
C is incorrect — teacher and student is an established duty of care.
D is incorrect — solicitor and client is an established duty of care. (See Section 2.1.1.)
A. Yes, because Joshua breached the duty of care he owed to the other cyclist and his negligence caused Claire a loss.
B. Yes, because Joshua breached the duty of care which he owed to Claire and his negligence caused her a loss.
C. Yes, because Claire suffered from a stillbirth and physiological injury.
D. No, because Claire could have predicted what might happen in the park.
E. No, because Joshua did not owe Claire a duty of care.
Answer & explanation
E is correct — duty of care is the first element that must be established before any compensation can follow. On these facts, the cyclist did not owe Claire a duty of care, so her claim fails at the first hurdle.
A is incorrect — a duty owed to the other cyclist does not, by itself, give Claire a claim; the duty must be owed to her.
B is incorrect — Joshua did not owe Claire a duty of care on these facts.
C is incorrect — the existence of injury does not create a duty of care; the duty element must be satisfied first.
D is incorrect — Claire's ability to predict events is not the determinative issue; the claim fails because no duty of care was owed to her. (See Sections 2.1.1 and 2.1.2.)
A. No, because the defendant is a conscientious and careful doctor who only missed the breaks on the X-rays due to increased pressure of work and the ward being understaffed at the time.
B. Yes, because the defendant failed to meet the standard of care expected of the reasonably competent casualty doctor.
C. No, because the defendant had only just qualified and was performing as well as any newly qualified doctor in their position.
D. Yes, because the defendant failed to meet the standard of care expected of the reasonably competent newly qualified casualty doctor.
E. Yes, because the defendant was at fault for not identifying the broken ankle on the X-rays.
Answer & explanation
B is correct — the defendant is measured against the standard of the reasonably competent casualty doctor. The standard is objective and is not lowered to reflect the defendant's inexperience; a reasonably competent casualty doctor would have identified the clearly visible fractures on the X-rays.
A is incorrect — the doctor's good character and the pressure of work do not lower the objective standard of care.
C is incorrect — the standard is not reduced to that of a 'newly qualified' doctor; the standard attaches to the post held, not to the individual's experience.
D is incorrect — for the same reason: the correct benchmark is the reasonably competent casualty doctor, not a 'reasonably competent newly qualified' one.
E is incorrect — while it identifies the failing, it does not correctly state the standard by reference to which breach is judged. (See Sections 2.2.1.1 and 2.2.1.3.)