Duty of Care Lecture

Duty of Care

What is a ‘Duty of Care’?

Duty of care constitutes the first requirement of a claim in negligence. The claimant must also establish breach and actionable damage caused by that breach and within the scope of the duty. Whilst there are many situations in which an individual might have acted carelessly, unless they have a duty of care to the person harmed by their carelessness, then no claim in negligence will arise. This is a key point - whilst a case (or problem question) might present the clearest existence of breach and causation possible, it will fail if duty of care is not present at the time of the breach.

Although the term ‘duty of care’ can seem a little alien at first, it can roughly be thought of a responsibility of an individual to not harm others through carelessness. For example, a driver on the road has a responsibility to other road users to not cause an accident through driving carelessly. In other words: they have a duty of care to other road users.

Because of its ability to make or break a given case, duty of care is often thought of as a ‘control mechanism’ within the law - essentially, a way for the courts to make a distinction between cases which are legally significant, and therefore worth pursuing, and those cases which do not merit legal attention.

The Development of the Duty of Care

The legal basis for finding a duty of care has its roots in Donoghue v Stevenson [1932] AC 562. Although, as will be noted below, the courts now distinguish established duties from genuinely novel cases, Donoghue v Stevenson provides the theoretical basis for the duty of care, and thus modern negligence, and so it is necessary to be familiar with the case.

Before Donoghue v Stevenson, English law recognised duties of care in particular situations, but a manufacturer's contractual obligations did not by themselves give an injured third party a claim. This led to a considerable number of injustices when individuals were injured by clear instances of negligence. An example of this phenomenon can be seen in Winterbottom v Wright (1842) 10 M&W 109. In the case, the defendant (Wright) was contracted by the UK’s Postmaster-General to maintain a horse-drawn mail coach in a safe state. The plaintiff (Winterbottom) was employed by a different contractor to drive the coach between destinations but was injured when the coach collapsed due to disrepair. The court held that the contractual duty on which Winterbottom relied was owed to the Postmaster-General. In essence, the contract concept of privity prevented legal action.

It does not take a huge amount of insight to see the problems that might have arisen as a result of the above decision. For example, a consumer injured by a bottle mistakenly filled with acid rather than soda could face a similar obstacle in suing the manufacturer if somebody else purchased the soda for them. Road users, by contrast, could owe each other a duty to drive carefully even without a contract. This is clearly problematic - we want our soda producers to ensure their products are safe, and we want drivers on the road to be careful, and the threat of being sued is a useful deterrent to unsafe behaviour.

It is, therefore, fortunate that the courts established the generally applicable concept of duty of care in Donoghue v Stevenson. It should be noted that the concept of a duty of care was not created specifically in Donoghue; instead, it was restricted to a few, highly specific situations. Thus, statements that the courts ‘invented’ or ‘created’ the duty of care concept in Donoghue are false, and should be avoided. Instead the courts can be thought of as greatly widening the remit of the concept.

Key to the decision is the reasoning of Lord Atkin (who led the majority of the court). Atkin held that a general duty of care could be said to exist between two parties under the ‘neighbour principle’, described in this key quote:

"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."
- Lord Atkin, Donoghue v Stevenson, 1932 SC (HL) 31, at 44.

Thus, Stevenson should have taken reasonable care to avoid snails or similar from getting into its products, because it is foreseeable that they might harm someone who consumed them. Atkin also explains (at 57) that the duty applies where the manufacturer intends the product to reach the consumer as it left the manufacturer, with no reasonable possibility of intermediate examination, and a lack of reasonable care may injure the consumer or their property.

However, Lord Atkin’s description of the neighbour principle is relatively broad in scope, and is thus inclusive of a wide range of situations. As a result of this, a number of cases subsequently sought to limit the application of the neighbour principle, such as limiting it to cases involving physical harm or damage to property (Old Gate Estates Ltd v Toplis & Harding & Russell [1939] 3 All ER 209). Pure economic loss from a negligent statement can, however, be recoverable where the defendant assumed responsibility and the claimant reasonably relied on it (Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465).

Following these restrictions, the law once again returned towards the application of a universal principle, with Anns v Merton London Borough Council [1978] AC 728 establishing a two-part test similar to the one employed in Donoghue. The first part of the Anns test essentially recreates the neighbour principle - a prima facie duty arose where there was sufficient proximity for the defendant reasonably to foresee that carelessness might harm the claimant. The second part, however, includes the caveat that the defence can argue against the existence of a duty with reasons of policy. It should be noted that Anns was overruled in Murphy v Brentwood District Council [1991] 1 AC 398. A modified form of the two-stage approach remains in use in Canada (Cooper v Hobart 2001 SCC 79).

In Caparo Industries v Dickman [1990] 2 AC 605 the House of Lords favoured developing the law incrementally and by analogy with established duties. In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 the Supreme Court confirmed that Caparo does not prescribe a universal three-stage test. This is discussed in the next section.

The Current Law: Caparo and Established Duties

Caparo identifies considerations relevant to recognising a novel duty of care. In established cases the court applies the existing principles. Examples include doctor-patient, solicitor-client, manufacturer-consumer and employer-employee relationships, as well as situations involving one road user and another. It will be sufficient to simply state that the duty of care in such a situation has long been established (thus, allowing the use of exam time or essay word counts on more important matters.) Indeed, this is the process undertaken by the courts - they will first look to see if there is an established legal position on the relationship between the two parties and the kind of harm in question. Only in a genuinely novel case need they examine whether a new duty of care should be recognised.

The considerations discussed in Caparo are foreseeability, proximity and fairness. The first consideration revolves around whether it is foreseeable that the defendant’s carelessness could cause damage to the claimant. A prime example of foreseeability can be seen in the US-based case of Palsgraf v Long Island Railroad Co [1928] 248 N.Y. 339. In the case, railway guards helping a passenger board a train dislodged his newspaper-wrapped package of fireworks. Nothing on the outside disclosed its contents. It fell onto the rails and exploded. The blast caused a set of heavy metal scales to fall onto the claimant, injuring her. Although it was possible to trace the claimant’s injuries to the defendant’s negligence, the court denied the claim - in applying a test of foreseeability, the courts found that it was not foreseeable that the claimant would be injured. In contrast, consider what would have happened had the guards known the package contained fireworks and the claimant been standing nearby - it would be quite foreseeable that dropping fireworks (of the variety found in 1928) would cause an explosion, and that that explosion might injure someone standing close enough. If this had been the case, then the courts would have likely found the harm to be foreseeable.

The second consideration is based on whether there is a relationship of proximity between the defendant and the claimant. This does not dictate that there must be physical proximity between claimant and defendant, rather that there must be a connection between the two. An example of proximity (or, rather, a lack of proximity) can be seen in Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5 - relatives and a fiancé claimed for psychiatric illness following the Hillsborough disaster. None established all the necessary links of proximity, including a close tie of love and affection and direct perception of the accident or its immediate aftermath. A secondary victim must also show a recognised psychiatric illness and foreseeable psychiatric injury to a person of ordinary fortitude in their position. In Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 the Supreme Court distinguished witnessing an accident from witnessing a relative's death or medical crisis from an illness negligently left untreated.

The third consideration of Caparo involves establishing whether it would be fair, just and reasonable for the courts to find that the defendant owed a duty of care to the claimant. Owing to the vague nature of this criteria, it is particularly important in a novel case to identify the reasons for and against recognising the proposed duty. Examples of the use of this criteria can be seen in cases like Marc Rich & Co v Bishop Rock Marine Co Ltd [1995] UKHL 4: a ship surveyor was alleged to have negligently approved temporary repairs on a ship which later sunk. The courts found that it would not be just for a duty of care to be found between the classification society and the owner of cargo on board the surveyed ship. Assuming proximity, the majority considered (at p.22 onwards) the allocation of risk between cargo owners and shipowners under their contracts and insurance arrangements. It was, thus, decided that it would be unjust to place liability on the classification society. The importance of providing a remedy for wrongs was recognised in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (at 749). That observation does not create a presumption that every proposed duty will be recognised.

In a novel case these considerations inform the decision whether recognising the proposed duty would be a sound incremental development of the law.

Exceptions and Special Situations

There exists a significant variety of situations in which establishing a duty of care depends on more specific principles. These situations will often feature in problem questions as a way of testing the completeness of your knowledge, and so it is important to be aware of them.

Liability for Omissions

Whilst a duty of care dictates that a person should not act in a way which causes harm, in general they do not force people to take an act to prevent harm from occurring. Thus, whilst a driver has a duty to not cause an accident through carelessness, they do not have a duty to help those involved in an accident they happen to come across. The principle of non-liability for omissions can be seen at work in Stovin v Wise [1996] UKHL 15. The claimant (Stovin) was injured when he was knocked off of his motorcycle by Wise at a junction. Visibility was impaired at the junction by a large bank of earth on the corner. Wise joined the council as a third party, claiming that the council had a duty to make the junction safe by removing the bank of earth, and that therefore the council was partially responsible for the accident (along with Wise.) The claim failed on the basis that the council had not actively put the bank of earth there, and its statutory power to remove the obstruction did not by itself create a duty to do so. This non-liability also extends to warning - there is no general duty to warn someone of a harm.

This principle is reflected in the wider law - outside of specific circumstances (which will be detailed below), there is no duty of care for an individual to act to prevent a foreseeable harm. For example, as morally distasteful as it might be, there is no requirement for an individual to save a drowning child from a shallow pond. It is worth taking into account that this is not universally accepted; other jurisdictions (such as France) do include ‘saviour’ or ‘good Samaritan’ laws, under which deliberately failing to assist a person in peril, personally or by summoning help, can be a criminal offence where assistance was possible without risk to oneself or others (French Penal Code, article 223-6). There are some exceptions to the rule that an omission to act cannot give rise to claim. A duty to protect may arise where the defendant has a special level of control over the source of danger, has assumed responsibility to the claimant, or stands in a relationship which carries a duty of protection. A defendant who has created or increased a risk may have made matters worse. This includes foreseeably interfering with help someone else would have given (Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33).

Control situations arise where a defendant has a high degree of control over an individual and thus is held as owing a duty to exercise that control responsibly. For example, in Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 the police were held responsible after an inmate on suicide-watch was able to kill himself, after the custody officer left the hatch open on his cell, allowing the inmate to attach his shirt and use it as a noose. This involved an omission (to close the hatch), but because the police had custody of a man known to be at risk of suicide, they had a duty to act.

Control situations also include various relationships of responsibility. Employers have a duty to take reasonable care for their employees' safety. Thus, in Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 an employer was found to be negligent because it had failed to take effective steps to restrain an employee who was known to play dangerous practical jokes on other employees. Because the employer had control of the situation, knew of the danger, and had given repeated warnings without stopping the dangerous behaviour, it was held liable.

They also include situations involving a carer (such as a parent or teacher) and child. In Carmarthenshire County Council v Lewis [1955] AC 549 a 4-year-old schoolchild was left unsupervised for 10 minutes by a teacher, and consequently left the classroom and walked onto a busy road. A truck driver swerved to avoid the child, hit a telephone pole and was killed. The council was liable for failing to take reasonable precautions to prevent a child escaping onto the road. The House of Lords did not need to find the teacher personally negligent.

In essence, you can ask ‘who is in charge?’ when looking for a control situation. What matters is the defendant's control over the source of danger and the scope of the duty that goes with it. Contrast the situation in which a passer-by fails to help a drowning child, and one in which the observer is the person in charge of caring for the child. The public policy reasons for this distinction are relatively intuitive - we want those who take control of a given situation to take responsibility and act competently.

Assumption of Responsibility situations involve, as might be expected, scenarios where one person undertakes responsibility for a task or for another's safety, expressly or by their conduct. For example, in Costello v Chief Constable of Northumbria Police [1998] EWCA Civ 1898 a police inspector failed to come to the aid of a police constable who had been attacked by a prisoner in a cell. It was held that in the circumstances of their shared work and the attack the inspector owed the constable a duty to take reasonable steps to assist her.

It is also possible for a duty of care to arise through a defendant’s actions towards a claimant - as in Barrett v Ministry of Defence [1995] 1 WLR 1217, where naval personnel assumed responsibility for an extremely drunk naval airman when they took charge of him after he collapsed. The airman was not adequately monitored, and subsequently choked on his own vomit. Again, those who took charge of him assumed responsibility and then omitted to prevent a foreseeable harm.

There is some overlap between this category and control situations such as custody of inmates or children. Assumption of responsibility turns on what the defendant undertook to do. The reasoning behind this category is similarly simple. We want those who take responsibility for a situation to act accordingly, and not to omit their duties.

Creation or Adoption of a Risk situations arise where a defendant creates a dangerous situation (including accidentally.) For example, in Capital & Counties plc v Hampshire County Council [1997] 3 WLR 331 a fire chief decided to turn off a sprinkler on the claimant’s land, worsening a fire. Ordinarily a duty of care would not arise for the fire service to extinguish a fire, but in worsening the situation the service was held to have created an additional risk to the claimant’s property, and so breached the duty to take reasonable care not to make matters worse.

Again, this can be seen as quite sensible. We want those who create risks to take responsibility for acting to prevent those risks from occurring. Thus, whilst there is no duty for a passer-by to report a building on fire, there is a duty for someone who sets a building on fire to take reasonable steps to prevent foreseeable harm once aware of the danger.

So, if a problem question asks you to deal with an omission, you should first ask whether it fits into one of these categories. Ask whether the defendant made the claimant worse off than if they had not intervened at all. If the complaint is simply a failure to protect, identify the legal basis of a duty to act.

Duty of Care and Third-Party Actors

A third party's act may break the chain of causation as a novus actus interveniens, but it will not ordinarily do so if it is the very event the defendant was under a duty to guard against, as in Home Office v Dorset Yacht Co Ltd [1970] AC 1004. Separately, the general rule is that there is no duty of care to prevent a third party’s actions. However, there are exceptions to this rule, laid down in Smith v Littlewoods [1987] UKHL 18. These exceptions include where there is a special relationship between claimant and defendant, where there is a special relationship between defendant and third party, where the defendant creates a source of danger and where the defendant fails to take steps to deal with a known danger created by a third party.

The first exception involves situations in which there is a special relationship between the claimant and defendant before the tort is committed. The prime example here is Stansbie v Troman [1948] 2 KB 48 - the defendant was instructed to lock up the claimant’s premises when he went out, and left the house unlocked while he went to buy wallpaper. Although it was a third-party who had burgled the premises, there was a pre-existing relationship between the claimant and defendant, and thus the defendant had a duty to lock up the premises as instructed.

The second exception involves another special relationship, but between the defendant and the third party themselves. For example, where a defendant has control over the third party - as in Home Office v Dorset Yacht Co Ltd [1970] UKHL 2. Borstal trainees escaped at night and damaged a yacht nearby. On the facts alleged, the supervising officers owed the yacht owners a duty to take reasonable care to prevent the escape and the kind of damage likely to result. The House of Lords was deciding a preliminary question of duty.

The third exception is situations involving a third party exacerbating a dangerous situation created by the defendant. Consider Haynes v Harwood [1935] 1 KB 146, where the defendants' servant left a horse-drawn van unattended. A boy threw a stone and the horses bolted. The defendants were held responsible for injury to the police officer who stopped them. Thus, the defendant had a duty of care to avoid creating a situation which could easily be exacerbated by a third party.

The fourth and final exception is situations where there is a failure by the defendant to abate a dangerous situation created by a third party. For example, an occupier who knows or ought to know of a danger on their land may owe neighbours a duty to take reasonable steps to prevent foreseeable damage. See Clark Fixing Ltd v Dudley Metropolitan Borough Council [2001] EWCA Civ 1898 - where the defendant was aware that a third-party (trespassers) would periodically start fires on their abandoned, unsecured property. They were held responsible when one of these fires spread to a neighbouring property, causing damage. Their duty of care was, thus, based around not dealing with a danger created by others, which could foreseeably do harm.

Duty of Care and Public Services

The same common law principles generally govern the liability of public services and private individuals.

A public service can owe an individual a duty to take reasonable care when its actions put that individual in danger. A statutory power or a duty owed to the public at large does not by itself create a duty to protect an individual from harm. In earlier cases the courts expressed concern that liability could make public services more risk averse. For example, a police force sued for failing to stop a murderer might put more resources into its homicide division at the cost of other policing services. The cost of defending claims and paying compensation out of public funds was also raised. In Robinson the Supreme Court rejected the suggestion that concerns of this kind give the police a general immunity. Officers making an arrest owed a duty of care to a pedestrian foreseeably injured by their actions.

Police

Whilst the police hold a duty to the public at large, they do not generally owe an individual a duty to detect a crime or a particular criminal. This can be seen in Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049, in which the courts ruled that the West Yorkshire police did not have an actionable duty to detect and detain serial killer Peter Sutcliffe. Lord Keith’s statements at page 5 discuss the reasons advanced against imposing a duty in that case. Knowledge of a threat does not by itself create a common law duty to protect. This can be seen in Osman v Ferguson [1993] 4 All ER 344: a teacher became infatuated with one of his pupils, eventually stalking and even changing his name to match that of the pupil. The police received reports of his behaviour. He eventually shot both the pupil and his father - the pupil survived, the father did not. The domestic negligence claim failed. As Robinson explains, Hill did not confer blanket immunity. Article 2 ECHR imposes a separate duty to take reasonable preventive measures where the authorities know or ought to know of a real and immediate risk to life. The Strasbourg court found no breach of that duty in Osman v United Kingdom (1998).

Furthermore, the police have no general duty to prevent harm from occurring to individuals. Thus, in Ancell v McDermott [1993] 4 All ER 355 the courts held that in spite of the police knowing about a diesel spill which caused a fatal road traffic accident, there was no duty actionable to make the road safe. The fact that someone is a witness or victim does not by itself impose a duty on the police to protect them. In Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 the Metropolitan police were held to have no duty of the particular kinds alleged in their treatment of Duwayne Brooks, who was attacked alongside Stephen Lawrence and witnessed his murder.

However, a duty is imposed in certain specific situations. The police have a duty to take reasonable care when entrusting officers with firearms, as per Attorney General v Hartwell (British Virgin Islands) [2004] 1 WLR 1273. The police may also assume responsibility to take reasonable care to protect an informant's identity where disclosure creates a special risk. In Swinney v Chief Constable of Northumbria Police [1997] QB 464 a claim was allowed to proceed after a stolen police document revealed an informant's identity, resulting in threats. The claim failed at trial because no breach of duty was proved.

Local Authorities

A statutory power does not, by itself, give an individual a right to damages for a local authority's failure to exercise it. In Stovin v Wise (discussed above), Lord Nicholls, dissenting, discusses the relationship between public funds, statutory powers and the common law at page 8 and the following page. The majority held that the council owed no duty to remove the obstruction. In HXA v Surrey County Council [2023] UKSC 52, investigating a child's circumstances or drawing up a child protection plan did not of itself amount to assuming responsibility to protect the child from abuse at home.

Emergency Services

An ambulance service may assume responsibility to an individual patient by accepting an emergency call. In Kent v Griffiths [2000] 2 WLR 1158 an ambulance was promised to someone in respiratory distress, but did not arrive in time. As a result, the patient went into respiratory arrest whilst waiting. It was noted by Lord Woolf (at 47) that the delay was unexplained and no competing demand for an ambulance justified it. Misleading assurances that the ambulance would arrive shortly also kept the patient from being driven to hospital.

As noted above, the emergency services can have a duty imposed if they attend and make a situation worse. This can be seen in Capital & Counties plc v Hampshire County Council (discussed above, in the section on omissions).

Administrators of Justice

Judges are immune from personal liability for negligence in the exercise of their judicial functions, as per Sirros v Moore [1975] QB 118. Under section 29 of the Arbitration Act 1996 an arbitrator is immune for acts or omissions in the discharge or purported discharge of their functions unless bad faith is shown. Where the Arbitration Act 2025 amendments apply, resignation gives rise to liability only if it was unreasonable in all the circumstances. The separate immunity that barristers and solicitors once enjoyed for their work as advocates was abolished in Arthur JS Hall v Simons [2000] 3 WLR 543.

Regulatory Bodies

The law regarding regulatory bodies is not especially concrete. Whether a duty is owed depends on the function exercised, the claimant and the kind of harm alleged. Thus, in Harris v Evans [1998] 1 WLR 1285 it was held that a health and safety inspector advising local authorities on the safety of a crane used for bungee jumping owed no duty to protect the operator from economic loss.

Private regulatory bodies are also subject to the ordinary principles. In Marc Rich & Co AG v Bishop Rock Marine Co Ltd, The Nicholas H [1996] AC 211 the cargo owners alleged that a classification society's surveyor negligently allowed a ship to continue its voyage. The claimant lost its cargo when the ship sank. The House of Lords declined to impose a duty to the cargo owners, having regard to the society's role and the allocation of risk under the shipping contracts.

A different duty may be owed to a person exposed to physical injury. In Perrett v Collins [1998] 2 Lloyd’s Rep 255 the inspector and the association responsible for certifying a light aircraft as fit to fly owed a duty to the passenger injured when it crashed.

Thus, ask what the regulator did, to whom the duty is said to be owed, and what loss it is said to cover. Neither public nor quasi-public status is enough to confer immunity.

Armed Forces

Finally, the armed forces enjoy immunity from the imposition of duties of care, in respect of conduct in the course of actual or imminent armed conflict, as per Mulcahy v Ministry of Defence [1996] QB 732. The reasoning here is relatively obvious: we want the military to operate with relative freedom, rather than worrying about tortious liability. In Smith v Ministry of Defence [2013] UKSC 41 the Supreme Court declined to extend combat immunity to procurement or training decisions simply because their effects were felt in battle.

Special Claimants

Finally, there are certain set situations in which a duty of care will be imposed, even if it would traditionally be legally unfeasible.

Pre-natal Injuries

Ordinarily, a foetus’s lack of legal personhood would prevent a duty of care from arising between a tortfeasor and the foetus. However, negligent acts can and do affect foetuses, who are negatively affected once born. As per Burton v Islington Health Authority [1993] QB 204, a child born alive could claim for injuries sustained before birth at common law. The case concerned births before the Congenital Disabilities (Civil Liability) Act 1976. For births after its passing, the Act provides a claim for a child born alive with disabilities caused by a qualifying occurrence before birth, including certain occurrences before conception. A child need not be born at full term. Section 1 excludes claims against the child's own mother, but section 2 makes separate provision for negligent driving by a mother who knew or ought reasonably to have known she was pregnant.

Rescuers

Rescuers also have special protection under the law. If a defendant creates a danger, it may be reasonably foreseeable that someone will attempt a rescue and suffer injury - indeed, there is a policy argument to be made for protecting those who altruistically come to the aid of those in need. This extends to those rescuing in a professional capacity, and thus in Ogwo v Taylor [1988] AC 431 the defendant was held liable for the injuries of a fireman who was attempting to fight a negligently started fire. It should, however, be noted that foreseeability of injury still applies - thus, in Crossley v Rawlinson [1982] 1 WLR 369 the rescuer tripped and fell with a fire extinguisher on his way to tackle a blaze. The claim failed because injury in that way was not reasonably foreseeable on the facts.

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