Negligence — duty of care (Caparo and after)

The duty of care is the first of the three elements that a claimant must establish in order to succeed in a negligence action: duty, breach, and causation. This note addresses the threshold question of whether the defendant owed the claimant a duty of care in the circumstances.

Since Donoghue v Stevenson [1932] AC 562, English law has recognised a general principle of liability for careless conduct causing harm. Yet the scope of that principle has never been unlimited. The courts have consistently imposed doctrinal and policy constraints, particularly in cases involving pure economic loss, psychiatric harm, and omissions. The Caparo test, articulated in Caparo Industries plc v Dickman [1990] 2 AC 605, remains the dominant framework: foreseeability of damage, proximity of relationship, and fairness, justice, and reasonableness.

This note examines the evolution of the duty concept, the structure and application of Caparo, and the divergent treatment of different types of harm and defendant conduct. Mastery of this material is essential for FHS candidates, as duty questions recur in both problem and essay papers and implicate deeper tensions between principle and pragmatism in tort law.

The neighbour principle

Donoghue v Stevenson [1932] AC 562 is rightly regarded as the foundation of modern negligence. Lord Atkin formulated the neighbour principle:

"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." (at 580)

The principle was expansive in aspiration but always subject to qualification. In the mid-twentieth century, courts struggled to articulate limits. Some cases adopted incremental reasoning, requiring analogy to established duty categories; others appeared to embrace foreseeability as sufficient.

The high-water mark: Anns

In Anns v Merton London Borough Council [1978] AC 728, Lord Wilberforce articulated a two-stage test:

"First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise." (at 751–752)

This appeared to establish foreseeability plus proximity as presumptively sufficient, subject to policy-based negation. The test was applied liberally in the late 1970s and early 1980s, particularly in cases of economic loss.

Retrenchment and the arrival of Caparo

By the mid-1980s, the House of Lords had begun to retreat from Anns. In Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210 and Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175, the courts emphasised incremental development by analogy to established categories. Anns itself was formally overruled in Murphy v Brentwood District Council [1991] 1 AC 398.

The modern framework emerged in Caparo Industries plc v Dickman [1990] 2 AC 605, which rejected both unbounded foreseeability and rigid two-stage tests in favour of a three-part inquiry guided by precedent and policy.

The three elements

In Caparo, Lord Bridge held that a duty of care arises where:

1. Foreseeability: It is reasonably foreseeable that the defendant's carelessness might cause damage to the claimant.
2. Proximity: There is a relationship of proximity or neighbourhood between the parties.
3. Fair, just and reasonable: It is fair, just, and reasonable to impose a duty.

Lord Bridge emphasised that these are not mechanical tests yielding automatic answers, but rather "convenient practical tests" to be applied incrementally by analogy to established categories (at 618).

The incremental approach

The Caparo framework does not invite courts to reason from first principles in every case. Instead, the preferred method is incremental development by analogy: courts should examine whether the facts fall within an established duty category or represent a modest, principled extension.

Lord Bridge stated:

"[T]he law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes." (at 618)

This represents a marked shift from Anns. Where Anns invited a presumption of duty subject to policy constraints, Caparo requires affirmative justification, particularly in novel cases.

Foreseeability

These questions are designed to test doctrinal knowledge, application, and critical reasoning. Answer in full essay or problem-question style under timed conditions.

Foundation

1. Explain the historical development of the duty of care from Donoghue v Stevenson to Caparo Industries plc v Dickman. Why did the courts retreat from the Anns test?

1. What is the role of foreseeability in the Caparo framework? Is it sufficient to establish a duty of care?

Standard

1. Adam, a police officer, negligently crashes his patrol car into a pedestrian, Bella, causing serious injuries. Bella's husband, Charlie, who witnesses the accident from 20 metres away, suffers post-traumatic stress disorder. Advise Bella and Charlie.

1. 'The distinction between acts and omissions in the law of negligence is arbitrary and unjust.' Discuss.

Challenge

1. Delta Ltd, a firm of accountants, prepares audited accounts for Echo plc. The accounts overstate Echo's profitability. Foxtrot, a potential investor, obtains a copy of the accounts from a mutual contact and relies on them in purchasing shares in Echo. The shares prove worthless. Advise Foxtrot on whether Delta owes him a duty of care. Would your answer differ if Echo had sent the accounts directly to Foxtrot at Delta's request?

Essential

• J. Murphy, Street on Torts (15th edn, OUP 2018) ch 5

Clear doctrinal exposition; excellent treatment of policy.

• C. McIvor, 'Getting to Grips with Caparo' (2010) 18 Tort L Rev 155

Critical analysis of the three-stage test and its applications.

• Nolan, 'Deconstructing the Duty of Care' (2013) 129 LQR 559

Influential critique of Caparo as framework rather than test.

Advanced

• Stapleton, 'Duty of Care and Economic Loss: A Wider Agenda' (1991) 107 LQR 249

Classic account of the incoherence of economic loss doctrine.

• Stevens, Torts and Rights (OUP 2007) ch 3

Rights-based critique of duty as policy instrument.

• Beever, Rediscovering the Law of Negligence (Hart 2007)

Philosophical reconstruction of negligence without policy balancing.

Case commentaries

• Morgan, 'Tort, Insurance and Incoherence' (2004) 67 MLR 384

On psychiatric harm after Page v Smith.

• Tofaris & Steel, 'Police Liability in Negligence for Failure to Prevent Crime' [2016] CLJ 128

Analysis of Michael and Hill.

Policy and comparative

• Cane, Tort Law and Economic Interests (2nd edn, OUP 1996)

Comprehensive treatment of pure economic loss.

• Markesinis & Deakin, Tort Law (8th edn, OUP 2019) ch 3

Comparative perspective (US, Germany, France).