Negligence — duty of care (Caparo and after)

A defendant owes a duty of care where three conditions are satisfied: (1) damage to the claimant was reasonably foreseeable, (2) there was sufficient proximity between the parties, and (3) imposing a duty is fair, just and reasonable (Caparo Industries plc v Dickman [1990] 2 AC 605). This is not a mechanical test but a framework applied incrementally by analogy to established categories. In novel situations, courts reason from precedent and policy; in established categories (road accidents, medical treatment), duty is simply assumed (Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4). The test exists to balance the general principle from Donoghue v Stevenson [1932] AC 562 — that we owe duties to our 'neighbours' — against legitimate concerns about indeterminate liability, coherence, and public policy.

Donoghue v Stevenson [1932] AC 562: Manufacturer owed duty to ultimate consumer despite no contract; Lord Atkin's neighbour principle established that duties arise where harm to persons 'closely and directly affected' is reasonably foreseeable. Foundation of modern negligence.

Caparo Industries plc v Dickman [1990] 2 AC 605: Auditors owed no duty to individual investor relying on accounts; established the three-stage test and incremental approach. The modern framework requiring courts to develop duty cautiously by analogy.

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4: Police caused physical injury during arrest; duty assumed without Caparo analysis because this was an established category. Clarified that Caparo applies only to novel cases.

Hill v Chief Constable of West Yorkshire [1989] AC 53: Police owed no duty to Ripper victim's mother for investigative failures; established broad immunity for police investigative functions. Proximity negatived by generality of relationship.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465: Negligent misstatement can found duty for pure economic loss where special relationship exists (assumption of responsibility, reliance, foreseeability). Created distinct regime for negligent statements versus acts.

First, identify the type of harm: physical injury (liberal), property damage (liberal), pure economic loss from acts (restrictive), pure economic loss from statements (Hedley Byrne), psychiatric harm to primary victims (Page v Smith) or secondary victims (Alcock criteria). Second, determine if the case falls within an established category — if yes, assume duty exists; if novel, apply Caparo. For Caparo analysis: (1) Was harm to this claimant objectively foreseeable? (2) Proximity factors include directness, assumption of responsibility, reliance, control, statutory context. (3) Policy considerations include floodgates, alternative remedies, defensive practices, coherence. For omissions, default is no duty unless assumption of responsibility, creation of danger, or special relationship. For public authorities, distinguish acts (normal principles) from omissions/discretion (restrictive approach per Michael, Poole).

Applying Caparo mechanically: Post-Robinson, only use the three-stage test in novel cases — don't rehearse it for road accidents or medical negligence. Conflating duty and breach: Duty asks whether any obligation exists; breach asks whether conduct met the standard. Missing harm type: Framework varies dramatically between physical injury, economic loss, and psychiatric harm — identify first. Overlooking omissions: No general duty to act; requires special factors. Misusing Hill immunity: Doesn't apply to police causing physical injury by positive acts.