Tort Law

Duty of Care in Tort Law: The Complete Student Guide

From Donoghue to Caparo, here's exactly how to analyse duty of care in an exam problem question.

Duty of care is the first hurdle in any negligence claim, and it's the one that trips students up most consistently in problem questions. Get the structure wrong here and everything that follows is shaky. Get it right, and the rest of the analysis almost writes itself.

Why Duty of Care Exists at All

Negligence does not impose liability for every careless act that causes harm. If it did, the floodgates problem would be real and serious. A surgeon who operates carelessly on patient A would be liable not just to that patient but potentially to everyone distressed by the news, everyone who relied on A's income, every business A was supposed to serve. The duty of care concept is the law's mechanism for drawing a principled boundary around who can sue whom.

The modern law starts with [Donoghue v Stevenson [1932] AC 562](https://www.getcaselaw.com/case-library/7c984837-f0b3-4afc-a73f-3ec96f6e4756). Mrs Donoghue drank ginger beer containing a decomposed snail, suffered gastroenteritis, and sued the manufacturer. She had no contract with him. The House of Lords held he still owed her a duty of care. Lord Atkin's "neighbour principle" is the passage you need to know cold: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, and your neighbours are persons so closely and directly affected by your act that you ought reasonably to have them in contemplation.

That principle is elegant but deliberately open-textured. It tells you the flavour of the thing. It does not tell you how to apply it sixty years later when the defendant is an auditor, a police force, or a highways authority.

The Caparo Test: Your Default Framework

For most duty of care questions you will encounter, the operative test comes from Caparo Industries plc v Dickman [1990] 2 AC 605. The House of Lords set out a three-stage test:

1. Foreseeability of damage to the claimant (or a class of persons including the claimant)
2. Proximity between claimant and defendant
3. Whether it is fair, just and reasonable to impose a duty

All three must be satisfied. They are cumulative, not alternative.

A word of warning about Caparo that tutors often gloss over. Lord Bridge in that case was actually cautious about using the three-stage test as a universal formula. He suggested that in novel situations courts should proceed incrementally, by analogy with established categories. The Supreme Court reinforced this in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4. Lord Reed said the Caparo three-stage test is not a general formula to be mechanically applied. Courts should first ask whether the case falls within an established category of duty. Only if it does not should they consider whether to extend the law.

What does that mean for your exam? It means you should always start by asking whether the relationship is an established one. Physical damage caused by a positive act to a foreseeable claimant is almost always covered. A manufacturer and consumer of a product, a driver and other road users, an employer and employee: these are settled categories. You do not need to grind through Caparo for those. Say so briefly and move on.

Caparo becomes your tool when the fact pattern is unusual. Economic loss, psychiatric harm, omissions, public authorities, and professional negligence are the areas where you need to work harder.

Established Categories vs Novel Situations

Splitting your analysis this way saves time in exams and demonstrates exactly the sophistication markers want to see.

Established categories where duty exists:

• A driver owes a duty to other road users and pedestrians
• An employer owes a duty to employees in respect of physical safety
• A manufacturer owes a duty to the ultimate consumer (Donoghue)
• A doctor owes a duty to their patient
• An occupier owes duties under the Occupiers' Liability Acts 1957 and 1984 (though that is a statutory regime)

Areas requiring closer Caparo analysis:

• Pure economic loss not consequent on physical damage (the Hedley Byrne territory)
• Psychiatric injury to secondary victims
• Failure to act (omissions)
• The liability of public bodies

Foreseeability in Practice

Foreseeability of damage is almost always satisfied in a well-drafted problem question. If someone drives recklessly, it is foreseeable they might injure a pedestrian. Examiners rarely ask you to labour this point unless the claimant is genuinely unforeseeable.

The clearest illustration of a claimant who was not foreseeable is Palsgraf v Long Island Railroad (1928), an American case, which you might encounter in academic discussion. English law handled the same idea in Bourhill v Young [1943] AC 92, where a pregnant fishwife who suffered shock after hearing a motorbike accident was held to be outside the range of foreseeable plaintiffs given where she was standing. The defendant motorcyclist could not reasonably have contemplated her.

So foreseeability is not a rubber stamp. Think about whether the type of harm was foreseeable and whether the claimant was within the class of people put at risk.

Proximity: More Than Just Physical Closeness

Proximity is the element that causes the most confusion because students interpret it spatially. It is not just about being nearby. It is about the nature of the relationship between the parties.

In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, the House of Lords found that a special relationship could arise between an advisor and an advisee where the advisor knew their statement would be relied upon. That reliance-based proximity has been refined in subsequent cases including Caparo itself (where the auditors owed no duty to prospective investors because the accounts were not prepared for that purpose).

Proximity in professional negligence cases really asks: did the defendant assume responsibility to this particular claimant? The voluntary assumption of responsibility test, drawn from Hedley Byrne and developed in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, is central here. It is not a purely subjective question of whether the defendant thought they were taking on responsibility. It is an objective assessment based on all the circumstances.

Fair, Just and Reasonable: The Policy Gate

This third element is where policy arguments live. Courts have used it to deny duty in several sensitive areas.

Public authorities are the classic battleground. The general position after Robinson is that public bodies are not liable in negligence for pure omissions (failing to exercise a statutory power) unless they have assumed responsibility or created a danger themselves. The police do not owe a duty of care to members of the public to prevent third-party crime as a general rule: Hill v Chief Constable of West Yorkshire [1989] AC 53. The immunity is not absolute and has been eroded at the edges, particularly where the authority has created the risk or assumed responsibility for a specific individual.

Psychiatric injury triggers its own sub-rules that cut across the standard Caparo analysis. The law distinguishes between primary victims (those in the zone of physical danger) and secondary victims (those who witness harm to others). For secondary victims, the Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 control mechanisms apply: proximity of relationship to the primary victim, proximity in time and space to the accident or its immediate aftermath, and perception through their own unaided senses.

For primary victims, [Page v Smith [1995] UKHL 7](https://www.getcaselaw.com/case-library/72b15ac1-6d7c-4cec-84d5-c3b607e50a72) is the key authority. The claimant was involved in a road accident and suffered a recurrence of chronic fatigue syndrome, even though there was no physical injury. The House of Lords held that where the defendant could foresee physical injury to the claimant, it was not necessary to show psychiatric injury was itself foreseeable. The thin skull rule effectively absorbed the foreseeability question for primary victims.

Omissions and Third-Party Acts

English law is reluctant to impose liability for pure omissions. You have no general duty to rescue a stranger. The drowning child in the shallow pond: you are not obliged by the law of tort to save them (though you are, many would say, obliged by basic human decency).

The exceptions matter:

• Assumption of responsibility: if you begin to rescue and then abandon, you may have made the situation worse and created liability
• Special relationships: employers, doctors, school authorities owe positive duties to act for those in their care
• Creating a danger: if you created the dangerous situation, you cannot simply walk away

Third-party acts follow a similar logic. You are not generally liable for the acts of another person. The exceptions again cluster around control and assumption of responsibility. A prison owes a duty in respect of harm done by an escapee if the escape was foreseeable and the harm was of the type that made the containment duty relevant: Home Office v Dorset Yacht Co Ltd [1970] AC 1004.

Pure Economic Loss

Pure economic loss, that is financial loss unconnected to physical damage or property damage, is not recoverable in negligence except in Hedley Byrne situations. This is a bright-line rule that trips students up because it seems harsh.

The classic example: a contractor carelessly cuts a cable and a nearby factory loses power, causing a production shutdown. The factory owner cannot recover for lost profits unless they also suffered physical damage to their property. The leading case is Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27.

Why? Policy. The potential class of claimants for pure economic loss is vast and unpredictable. The law draws the line at the Hedley Byrne exception: if there is a special relationship involving assumption of responsibility, reliance, and knowledge that the advice or service will be relied upon, then recovery is possible.

A Checklist for Problem Questions

When you see a negligence problem, work through duty like this:

1. Identify the defendant's act (or omission) and the type of harm suffered
2. Ask whether this falls within an established category of duty. If yes, say so briefly and cite the relevant authority
3. If the category is unclear or novel, apply Caparo: foreseeability, proximity, fair just and reasonable
4. Flag any special rules: pure economic loss, psychiatric injury (primary or secondary victim?), omission, public body
5. If the defendant is a public authority, consider Robinson: was there a positive act creating danger, or an assumption of responsibility? If just a failure to act, no duty as a general rule
6. Address any policy arguments under fair, just and reasonable, but do not let policy do all the work. Markers want to see the legal structure first

What Markers Actually Want to See

The single biggest mistake in duty of care answers is jumping straight to breach. Students assume duty exists and race to the interesting causation arguments. That is understandable. Duty can feel formulaic. But in a problem question designed to test duty, skipping the analysis is a significant error.

The second biggest mistake is treating the Caparo three-stage test as a magic formula that automatically produces an answer. Lord Reed in Robinson was explicit that this is not how courts approach it. Show that you know the hierarchy: established categories first, incremental extension second, Caparo as a framework for novel cases rather than a universal algorithm.

The third mistake, most common in Hedley Byrne questions, is conflating foreseeability with assumption of responsibility. They are different things. An auditor can foresee that many people will read their accounts. That does not mean they have assumed responsibility to all of them.

Get those three things right and you are ahead of a significant proportion of the cohort.

If you want to read the full text of the foundational cases, *Donoghue v Stevenson* is available on Caselaw, as is *Page v Smith* for the psychiatric injury rules. For any other cases mentioned here, the case finder tool will get you there fast.