Duty of Care and Breach of Duty

Introduction

**Donoghue v Stevenson [1932]** gave the common law a new tort — the **tort of negligence** — and with it the concept of a **duty of care**. This chapter examines the **first two elements** of a negligence claim: the **duty of care** (when the law recognises that one person must take care not to harm another) and **breach of that duty** (when the defendant has failed to meet the required standard of care). You will learn the **established categories** of duty, the **neighbour test**, the **three-stage Caparo test**, the modern reaffirmation in **Robinson v Chief Constable of West Yorkshire [2018]**, the **general rule on omissions**, the **reasonable person standard** and its **special variations** for children, skilled and under-skilled defendants.

Assessment focus

For the SQE1 FLK1 assessment, you must be able to **identify whether a duty of care is owed** on the facts of a client scenario and, if so, **whether that duty has been breached**. You should know the **established duty relationships**, when to apply the **Caparo three-stage test** (novel situations only), and how the courts set the **standard of care** for ordinary people, children, professionals and learners. Questions are single best answer questions (SBAQs) set in **realistic client-based scenarios**; you will be expected to **apply** these principles to facts rather than merely recall them. This is a closed-book assessment — be able to recall the leading cases (**Donoghue, Caparo, Robinson, Blyth, Mullin v Richards, Bolam, Nettleship v Weston**) and their propositions from memory.

Study tips

1) Memorise the **established duty relationships** (employer/employee, doctor/patient, teacher/student, driver/pedestrian, manufacturer/consumer) — if one applies, you need not analyse duty further. 2) Apply the **Caparo three-stage test (foreseeability + proximity + fair, just and reasonable) ONLY to novel situations**; otherwise reason **incrementally and by analogy** (Robinson). 3) Remember the **general rule: no liability for pure omissions**, and Lord Goff's exceptions in **Smith v Littlewoods**. 4) The standard of care is **objective** — the **reasonable person** (Blyth) — but is adjusted: **child = reasonable child of same age** (Mullin v Richards); **professional = Bolam test**; **learner = reasonably competent qualified person** (Nettleship v Weston). 5) Breach must be proved by the claimant on the **balance of probabilities**; note **res ipsa loquitur** where negligence speaks for itself.