In English tort law, an individual may owe a duty of care to another, in order to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability will be imposed upon the tortfeasor to compensate the victim for any losses they incur. The idea of individuals owing strangers a duty of care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. The doctrine was significantly developed in the case of Donoghue v Stevenson,Donoghue v Stevenson (1932) AC 562 where a woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.
Generally, a duty of care arises where one individual or group undertakes an activity which could reasonably harm another (or themselves), either physically, mentally, or economically. This includes common activities such as driving (where physical injury may occur), as well as specialised activities such as dispensing reliant economic advice (where economic loss may occur). Where an individual has not created a situation which may cause harm, no duty of care exists to warn others of dangerous situations or prevent harm occurring to them; such acts are known as pure omissions, and liability may only arise where a prior special relationship exists to necessitate them.
Duty of care
The first element of negligence is the legal duty of care. This concerns the relationship between the defendant and the claimant, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the plaintiff in all the circumstances of the case. There are two ways in which a duty of care may be established:
the defendant and claimant are within one of the recognised relationships where a duty of care is established by precedent; or outside these relationships, according to the principles developed by case law.
The principles delineated in Caparo v Dickman specify a tripartite test:
Was the harm reasonably foreseeable? Was there a requisite degree of proximity between the claimant and the defendant? Is it fair, just and reasonable to impose a duty of care; are there precluding public policy concerns?
There are a number of distinct and recognisable situations in which the courts recognise the existence of a duty of care. Examples include
one road-user to another employer to employee manufacturer to consumer doctor to patient solicitor to client teacher to student
The common law position regarding negligence recognised strict categories of negligence. In 1932, the duty of a care applied despite no prior relationship or interaction and was not constrained by privity of contract.Elliott, Quinn, p. 17 Here, a duty of care was found to be owed by a manufacturer to an end consumer, for negligence in the production of his goods. Mrs Donoghue's claim for damages for gastroenteritis and nervous shock were allowed, where a ginger beer manufacturer had negligently allowed a snail into a bottle, which she had consumed. Lord Atkin established liability on the basis that a neighbour principle existed between the two parties, to ensure reasonable care was taken in the production of the ginger beer, so as not to cause Mrs Donoghue any unreasonable harm:
Lord Atkin's speech established a neighbour principle,McBride, Bagshaw, p. 72 or a general duty that individuals must take reasonable care in their actions or omissions, so as not to cause harm to others proximate to them. It did not matter that Mrs Donoghue was unidentified or unknown to the manufacturer; as the type of harm which occurred was foreseeable through the negligence of the ginger beer manufacturer.
The Anns test
Following the firm establishment of the neighbour principle in negligence, it became clear in subsequent years that it did not represent an easily applicable approach to new forms of duty, or to unprecedented situations of negligence.Elliott, Quinn, p. 18 As such, new categories of negligence evolved, as in Hedley Byrne & Co Ltd v Heller & Partners Ltd,Hedley Byrne & Co Ltd v Heller & Partners Ltd AC 465 to cover different types of negligent acts, rather than a coherent doctrine or ratio being taken from Donoghue v Stevenson.Markesinis, Johnston, Deakin, p. 125 Some thirty years after Donoghue was decided, in Home Office v Dorset Yacht Co Ltd,Home Office v Dorset Yacht Co Ltd AC 1004 Lord Reid stated judicially that: "the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion." AC 1004, at 1027 It was not until the case of Anns v Merton London Borough CouncilAnns v Merton London Borough Council AC 728 however, that the neighbour principle was adopted in a formal test for negligence. The case involved the negligent construction of a block of maisonettes, commissioned by the Merton London Borough Council. The flats, finished in 1972, had poorly constructed foundations, resulting in sloping of floors, and cracks in the walls. The lessees of the maisonettes sued the council in negligence, alleging a duty of care existed for the building to be properly constructed and in a usable state.
In rejecting the previous evolution of duty of care, a categorical approach where a claim would have to fit under previous situations a duty had been found, the House of Lords unanimously found a duty to exist. The test established by Lord Wilberforce – known as the Anns test – imposed a prima facie duty of care where:
A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage, such that carelessness on the part of the former is likely to cause damage to the latter; AC 728, p. 751 There are no considerations relevant which may reduce or limit the scope of any imposed duty. AC 728, p. 752
The three stage test Following the establishment of the two stage test for a duty of care, there was a marked judicial retreat from the test, which was widely seen as being too inclusive, and being too easily applicable to cases which might be contrary to public policy.McBride, Bagshaw, p. 57 The test was formally overruled in Murphy v Brentwood District Council,Murphy v Brentwood District Council 1 AC 398 where the House of Lords invoked the Practice Statement to depart from the Anns test. The resultant test for a duty of care - which remains good law today - can be found in the judgments of Caparo Industries plc v Dickman.Caparo Industries plc v Dickman 2 AC 605 A large criticism of the Anns test had been that it combined the test for proximity of relationship with foresee-ability of harm. Whereas Lord Atkin's neighbour principle emphasised a need for both a proximate relationship, as well as a foreseeability of harm, the Anns test did not make such a clear distinction. Richard Kidner has stated that this led the courts to sometimes ignore relevant policy considerations,Kidner, p. 323 and to encourage "lazy thinking and woolly analysis".Kidner, p. 322 The resounding test attempts to reconcile the need for a control device, proximity of relationship, with foreseeability of harm. Lord Oliver's speech in Caparo Industries PLC v Dickman summarises the test for a duty of care: 2 AC 605, at 632-633
The harm which occurred must be a reasonable foreseeable result of the defendant's conduct; A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage; It is fair, just and reasonable to impose liability.
In reintroducing the need for proximity as a central control device, it has been stated that these three stages are 'ingredients' of liability, rather than tests in their own right. For example, liability can arise between complete strangers, where positive acts involving foreseeable physical harm occur; where negligent omissions and misstatements occur however, it is necessary to show a proximate relationship, as well as a foresee-ability of harm.Markesinis, Johnston, Deakin, p. 129
Status of the claimant The status of the claimant in an act of negligence can result in a duty of care arising where it would not normally – as is the case with rescuers – or prevent a duty of care existing altogether. Claims that a doctor may owe a mother a duty of care to advise against child birth, and claims that police may owe an individual involved in criminal behavior a duty of care, have been barred. In McKay v Essex Area Health Authority,McKay v Essex Area Health Authority QB 1166 a child's claim that a doctor should have advised his mother to seek an abortion was struck out; Whilst the Congenital Disabilities (Civil Liability) Act allows a course of action where negligence is the cause of a disability, wrongful life has remained barred for policy reasons.Markesinis, Johnston, Deakin, p. 218 Similarly, where a criminal attempted to escape police capture in Vellino v Chief Constable of the Greater Manchester,Vellino v Chief Constable of the Greater Manchester Police 1 WLR 218 his claim that they owed him a duty of care not to let him escape after they had arrested him was branded 'self-evidently absurd'.Schiemann LJ, Vellino v Chief Constable of Greater Manchester , EWCA Civ 1249, cited as 1 WLR 218 , paragraph 19, delivered 31 July 2001, accessed 1 December 2023
Rescuers "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their efforts within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer."(1921) 133 NE 437, 232 NY 176 at 180 Cardozo J, Wagner v International Railway Co (1921) 133 NE 437, 232 NY 176
It has been established at common law that those who attempt rescue are owed a duty of care by those who create dangerous situations, in which it is foreseeable rescuers may intervene. This duty can apply to professional rescuers – such as doctors or lifeguards – as much as ordinary individuals, and may even apply where the rescuer engages in a careless or reckless rescue attempt. The basis for this liability was first recognised in Haynes v Harwood.Haynes v Harwood 1 KB 146 Here, a child who threw a stone at a horse, causing it to bolt, was liable to a policeman who attempted to stop it subsequently, and was injured. The duty was confirmed in the later case of Baker v T E Hopkins & Son Ltd,Baker v T E Hopkins & Son Ltd 1 WLR 966 with Wilmer LJ stating that:
Assuming the rescuer not to have acted unreasonably, therefore, it seems to me that he must normally belong to the class of persons who ought to be within the contemplation of the wrongdoer as being closely and directly affected by the latter's act. 1 WLR 966, at 981
The duty of care owed to a rescuer is separate from that owed to those he is rescuing.Wicks v State Rail Authority of New South Wales HCA 22 Where individuals trespassed onto a railway line, putting themselves in danger, they were not owed a duty of care; however, the stationmaster who attempted rescue and was fatally injured was owed a duty of care, as it was foreseeable he would attempt a rescue. 2 QB 650, at 651 Equally, a duty of care may arise where an individual imperils himself, and a rescuer is injured, despite the individual clearly owing himself no duty of care.Cooke, p. 198
Duty of care for omissions