Negligence — Duty of Care after Caparo and Robinson

Negligence requires duty, breach, causation, and damage. The duty stage is the gatekeeper: no duty, no claim. UK courts have twice formulated — and re-formulated — how to decide whether a duty exists.

The Caparo three-stage test. From Caparo Industries plc v Dickman [1990] 2 AC 605:

1. Foreseeability: was it reasonably foreseeable that a person in the claimant’s position would suffer loss?
2. Proximity: was there a sufficiently close relationship between claimant and defendant?
3. Fair, just, and reasonable: would it be fair, just and reasonable to impose a duty in the circumstances?

The Robinson restatement. Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 tightened the position: where a duty has already been recognised in similar situations, courts apply that established duty rather than re-running Caparo from scratch. Caparo is for novel cases. Robinson re-emphasised the importance of incremental development by analogy with existing duty situations — rejecting any single “master test” of duty.

Established duty situations. Examples where a duty is taken as given: road users to other road users (Donoghue v Stevenson [1932] AC 562); doctors to patients (Bolam v Friern Hospital Management Committee [1957]); employers to employees (Wilsons & Clyde Coal Co v English [1938] AC 57); manufacturers to consumers (Donoghue); occupiers to visitors (Occupiers’ Liability Acts 1957 and 1984).

Pure economic loss. Generally no duty for pure economic loss caused by negligent acts (Spartan Steel v Martin & Co [1973] QB 27). Exceptions: assumption of responsibility (Hedley Byrne v Heller [1964] AC 465); extended Hedley Byrne (Henderson v Merrett Syndicates [1995] 2 AC 145); wills cases (White v Jones [1995] 2 AC 207).

Public authorities. Police and other public authorities are not generally liable for failing to protect (Hill v Chief Constable of West Yorkshire [1989] AC 53; Michael v Chief Constable of South Wales [2015] UKSC 2), unless they have assumed a special responsibility, made a situation worse, or fall under a positive Convention obligation.Robinson itself recognised police can owe a duty when their positive acts cause physical injury.

Psychiatric injury. A separate body of duty rules for nervous shock (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310; Page v Smith [1996] 1 AC 155; White v Chief Constable of South Yorkshire [1999] 2 AC 455). Distinguish primary victims (within zone of physical danger) and secondary victims (witnesses) — secondary victims must satisfy the strict Alcock control mechanisms.

Pure omissions. The common law rarely imposes a duty to act — the no-rescue rule. Exceptions arise from assumption of responsibility, contractual relationships, statutory duties, control over a dangerous source, or creation of the risk.

Exam approach. Identify the situation. Is it an established duty category? If so, simply state the duty exists and cite the authority. If novel, run the Caparo test as restated by Robinson, with an incremental, analogical approach. Avoid mechanically applying Caparo where the situation is settled.