Duty of Care
Personal Injury & Property Damage
The test for a duty of care depends on whether the case is a novel situation or not.
- Novel cases: the test in Caparo Industries Plc v Dickman [1990] 2 AC 605.
- Non-Novel cases: the test in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.
The Caparo v Dickman Test
- Is the damage foreseeable?
- Is there a relationship of ‘proximity’ between the claimant and defendant?
- Is it fair, just and reasonable to impose a duty?
The Robinson Test
If the facts of the case are not novel, then there will be a duty of care if there is previous authority which applies to that relationship which states that a duty of care was owed.
Note that some later cases have suggested that Caparo is no longer applicable even to novel cases: James-Bowen v Metropolitan Police Commissioner [2018] UKSC 40. These cases state that the courts should instead consider whether the new duty is a reasonable incremental development from existing categories of duty. However, other cases have continued to apply Caparo to novel situations: EXE v Governors of Royal Naval School [2020] EWHC 596 (QB); BXB v Watch Tower and Bible Tract Society of Pennsylvania [2020] EWHC 156 (QB).
Some common established duties of care include:
Medical Professionals to Patients: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
Road Users to Other Road Users: Nettleship v Weston [1971] 2 QB 691.
Teachers to School Children: Carmarthenshire County Council v Lewis [1955] AC 549.
Employers to Employees: General Cleaning Contractors v Christmas [1953] AC 180.
Even if the case seems novel, it is not necessary to apply Caparo if it is strongly analogous to another case. For example:
Darnley v Croydon Health Services NHS Trust [2018] UKSC 50: In this case, the Supreme Court held that imposing a duty on A&E receptionists was sufficiently analogous with existing duties placed on paramedics and A&E medical staff. This meant that there was no need to apply the Caparo test.
Omissions
The general rule is that people are not subject to a duty to act. There is no liability for omissions: Stovin v Wise [1996] 3 WLR 389. The exceptions are:
Where the defendant assumed responsibility for the claimant: Barrett v MOD [1995] 1 WLR 1217.
The defendant had control over a dangerous object or animal: Haynes v Harwood [1935] 1 KB 146.
The defendant had control over a third-party who caused the harm: Carmarthenshire County Council v Lewis [1955] AC 549.
The defendant created the risk or made the harm worse: Capital & Counties v Hampshire CC [1997] QB 1004.
The defendant adopted the risk by incompletely dealing with the danger: Goldman v Hargrave [1967] 1 AC 645.
There are individual categories of special duty, such as doctors to patients: Rabone v Pennine Care NHS Trust [2012] 2 WLR 381.
Public Authorities
In public authority cases, remember to consider whether the matter complained of is an act or an omission. If it is an omission, you must also consider whether there is an exception to the rule against omissions liability.
Local Authorities
Whether a duty of care is owed will depend on the matter complained of: X (Minors) v Bedfordshire County Council [1995] 2 AC 633.
If it is a complaint that the local authority made or failed to make a decision involving the exercise of discretion with policy considerations, a duty of care is unlikely (though not impossible: see JD v East Berkshire Community Health NHS Trust [2005] UKHL 23).
If the complaint concerns the failure to exercise a statutory discretion which does not involve policy considerations, a duty is usually only owed if the decision was so unreasonable that it cannot be classified as being within the lawful scope of the discretion granted by the power. This only applies if there is not already an established common law duty of care which applies to the facts.
If it is a complaint concerning the practical manner in which the local authority implemented a decision, there is no special bar against a duty of care arising. This is the case even if the local authority is only able to make that decision because they have been authorised by statute.
In addition, local authority bodies do NOT owe duties to:
- Citizens, to warn them that they are in danger from a third-party: Mitchell v Glasgow City Council [2009] UKHL 11;
- Parents, when conducting investigations into allegations of child abuse: JD v East Berkshire Community NHS Trust [2005] 2 WLR 993.
The Police and CPS
The police and CPS do NOT owe duties to:
Suspects, to carry out the criminal investigation and charges in a reasonable way: Calveley v Chief Constable of Merseyside Police [1989] AC 1228.
Witnesses, to regard, protect and support them as witnesses or potential victims: Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495.
Victims, to properly investigate, detect and prevent crime: Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495.
The police DO owe duties to:
- Informants, to protect their confidentiality: Swinney v Chief Constable of Northumbria Police Force [1997] QB 464;
- Victims, to properly warn of, detect and prevent crime where the police ought to have known at the time of a real and immediate risk to the life of an identified person from the acts of a specific third-party: Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50;
- Victims, if police dispatch assumed responsibility for the victim’s safety by assuring the caller they would promptly deal with a serious matter (if the caller relied on this and didn’t seek further help themselves): Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB);
- Victims, if the police created or worsened the risk of harm: Robinson v CC of West Yorkshire Police [2018] UKSC 4.
Fire and Ambulance
Emergency services DO owe a duty of care in the following situations:
Ambulance services owe a duty to callers and victims, after the service has accepted a call for assistance: Kent v Griffiths [2000] 2 WLR 1158.
The fire service owes a duty of care to victims, but only after the service has begun to help but made the problem worse than it would have been: Capital & Counties Plc v Hampshire County Council [1997] QB 1004.
Psychiatric Harm
The rules for negligently-caused psychiatric harm change depending on what kind of victim the claimant was: consequential, primary or secondary.
If the claimant has suffered physical harm, any consequential psychiatric harm falls within the scope of the duty to avoid physical harm.
If the claimant is a primary victim, then the defendant owes a duty not to cause recognised psychiatric illness.
If the claimant is a secondary victim, then a duty of care is only owed if the criteria in Alcock v CC of the South Yorkshire Police [1992] 1 AC 310 are met.
Primary Victims
The following are the established classes of primary victim:
Claimants who are in the ‘zone of danger’ for physical injury: Page v Smith [1996] 1 AC 155.
Claimants who reasonably believe they are in the ‘zone of danger’: Dulieu v White [1901] 2 KB 669.
Claimant who reasonably believe they have been made an instrumental cause of someone else’s death or serious injury: Dooley v Cammell Laird [1951] 1 Lloyd’s Rep 271.
Pregnant claimants whose foetuses or babies are injured in utero: Yah v Medway NHS Foundation Trust [2018] EWHC 2964.
Secondary Victims
If a claimant is not a consequential or primary victim, they are a secondary victim. They must establish the Alcock criteria:
1. The claimant must have a close tie of love and affection with someone who was injured in the event (presumed or proven)
2. The claimant must have been physically and temporally close to the event or its immediate aftermath
3. The claimant must have suffered a sudden shock from witnessing something horrifying with their own unaided senses
4. The claimant must have suffered a recognised psychiatric illness (Tanner v Sarkar [2016] 12 WLUK 259)
The following principles have been established by the case-law:
- A close tie is presumed for parents, spouses, and fiancées: Alcock v CC of the South Yorkshire Police [1992] 1 AC 310.
- It is unclear what the ‘event’ is. Some cases suggest it is the moment of the breach: Taylor v Somerset [1993] PIQR P262. Others suggest it is the first time harm manifests: Werb v Solent NHS Trust [2017] WL 02978816. The Court of Appeal suggests that the ‘event’ can be the first manifestation of injury, but that it still cannot be relied on if it is ‘removed in time’ from the breach: Paul v Royal Wolverhampton NHS Trust [2022] EWCA Civ 12.
- The ‘immediate aftermath’ is a short window of a few hours: contrast Galli-Atkinson v Seghal [2003] Lloyds Rep Med 285. with Berisha v Stone Superstore [2014] WL 6862531.
- An event or aftermath is not sudden if a reasonable person would expect to see that sort of thing the relevant context: Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588.
Economic Loss
Where the claimant suffers economic loss as a result of personal injury or property damage (or psychiatric harm, if there is a duty of care), such as lost earnings from being unable to work, then this automatically falls within the scope of the existing duty.
Non-consequential economic loss is pure economic loss. Economic losses which arise due to latent defects present are also classed as pure economic loss: Murphy v Brentwood District Council [1991] UKHL 2. A special test must be met to establish a duty in pure economic loss cases.
Establishing a Duty to Avoid Pure Economic Loss
A duty to avoid causing pure economic loss only arises if the defendant has ‘assumed responsibility’ for the claimant’s economic and financial well-being: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. This will only arise if the following facts exist:
- A ‘special relationship’ exists between the parties. Examples include a professional, employment or business relationship: Henderson v Merrett Syndicates (No 1) [1994] UKHL 5; Howard Marine v Ogden [1978] QB 574; Spring v Guardian Assurance [1994] 3 WLR 354.
- The defendant knew that the claimant would rely on their advice or actions without taking steps to verify the advice or action was proper: Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161.
- The claimant did in fact rely on that advice such that they would have done something different if the defendant had not been negligent: White v Taylor [2004] EWCA 1151.
The existence of a valid notice or term which disclaims liability will mean there is no duty of care. This is because the disclaimer demonstrates that the defendant did not assume responsibility for the claimant’s affairs: Hedley Byrne & Co v Heller & Partners [1964] AC 465.
In very rare cases, a duty to avoid causing economic loss exists even where the above criteria are not met. For example:
White v Jones [1995] 2 WLR 187: The House of Lords held that solicitors owe a duty not to cause economic loss to potential beneficiaries of a testator’s estate or will.
