This is an extract of our Duty Of Care And Breach Of Duty document, which we sell as part of our Tort Law Notes collection written by the top tier of Oxford students.
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Duty of Care and Breach of Duty
Legal wrong = infringement of C's right OR breach of D's legal duty.
Tort law gives people rights free of charge and without having to make special arrangements for them (whereas in contract law rights exist only once voluntarily arranged between parties).
Such rights usually take this form: A has the right that B do X. Only the victim of a tort is entitled to seek a remedy (the person whose right was breached) - that is the person who has the right.
Private wrong = breach of a legal duty imposed on someone for the benefit of a specific individual.
Public wrong = breach of a legal duty imposed on someone for the benefit of society as a whole.
Loss-compensation model of tort law = A causes B a loss B is entitled to sue A for compensation for that loss. We reject this model as it
(1) ignores non-compensatory remedies,
(2) ignores actionable torts where no loss is caused and
(3) implies that where loss is caused there is a tort (implying a wrong has been committed, yet some losses can be caused without a wrong occurring).
Residual wrongs model of tort law = tort law comprises all the civil wrongs which fall outside other areas of law. If this is true, tort law has no 'function' or underlying feature. However, the underlying feature of tort law is that torts are wrong to a consensus - they require each of us to look out for others' interests.
Tort law is very willing to give us rights that others do not make us worse off, but is reluctant to give us rights that someone do something to make us better off - this is the realm of contract law, except where D "assumes a responsibility" for C.
Parliament can also create statutory torts, and legislation may specify how breaches of such torts should be remedied, e.g. HRA says a "just and appropriate" remedy, whereas CL is usually purely compensatory. Statutes can also modify or extend tort rights and remedies, as well as prevent the
'contracting out' of tort law (e.g. s65 Consumer Rights Act 2015).
A tortfeasor may have liability insurance, where the insurer will cover the cost of damages if the tortfeasor is found liable. It is mainly employers and insurers who pay the damages in tort claims,
but really the general public pays the cost through higher prices for goods and services, and more expensive insurance premiums cost of tort claims is 'spread' throughout the population. Tort law may give people more protection and control over their own lives, but people will often go overboard in ensuring they will not be sued (resulting in decreased efficiency) and the need for liability insurance gives insurers a lot of power over their clients, dictating what they can and cannot do. THE TORT OF NEGLIGENCE
A claim in negligence requires C to show that:
D owed C a duty of care
D breached that duty of care
The breach caused C to suffer some kind of loss
That loss is actionable.
Most authorities and textbooks break down point (c) into causation and remoteness, stating that a claim in negligence requires C to show that:
D owed C a duty of care
D breached that duty of care
The breach caused C to suffer…
Actionable damage. A. DUTY OF CARE
A duty of care (DoC) may be a positive or negative duty (requiring D to act or not act in a particular way, respectively). There is debate over whether policy concerns should affect whether a DoC exists.
McBride and Bagshaw say a DoC should only exist where there are non-policy reasons indicating that a duty should exist AND it is not contrary to the public interest.
There have been multiple tests for DoC over the years:
Heaven v Pender (1883) - Brett MR
o Reasonable foreseeability of harm gives rise to a DoC
Donoghue v Stevenson (1932) - Lord Atkin = SEMINAL CASE
o Lord Atkin's 'neighbour principle' = reasonable foreseeability of harm to persons who are "so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected [by my conduct]".
- Lord Thankerton agreed entirely with Lord Atkin's judgment.
o CONTRAST with Lord Macmillan:
Said that a DoC existed because the manufacturer "had directly in contemplation" that his ginger beer would be consumed by members of the public, meaning this possibility of injury was not too remote so as to excuse him from foreseeing it.
Lord Macmillan seemed to spend a long time focusing on 'remoteness'. "It must always be a question of circumstances whether the carelessness amounts to negligence, and whether the injury is not too remote from the carelessness. … It may be a good general rule to regard responsibility as ceasing when control ceases. … [In the present case] I regard his control as remaining effective until the article reaches the consumer and the container is opened by him", given the sealed nature of the ginger beer bottle.
- Interesting that Lord Macmillan seems to bring remoteness into the analysis of whether there was "responsibility", i.e. a duty of care.
This is opposed to the idea that there is a duty of care but the resultant harm is too remote for liability to ensue.
o Note that Lords Buckmaster and Tomlin dissented.
Anns v Merton LBC (1978) - Lord Wilberforce
- Is there a sufficient relationship of proximity between D and C such that D
would reasonably foresee that his negligence would cause damage to C?
- Are there any considerations which ought to reduce the scope of the duty or the class of persons to whom it was owed or the damages to which is may give rise?
o Too easy to find a DoC.
Sutherland Shire Council v Heyman (1985) - Brennan J
o The 'incremental test' states that DoCs should be imposed by analogy with established categories in which DoCs already exist.
Caparo Industries Plc v Dickman (1990) - Lord Bridge of Harwich
- it was reasonably foreseeable that C would suffer harm as a result of D's actions or inaction
- there was a relationship of proximity between D and C
- it would be 'fair, just and reasonable' to find that D owed C a duty of care.
The Nicholas H (1996) - HoL
o Whatever the nature of the harm suffered by C, it is necessary to consider not only foreseeability but also the nature of the relationship between the parties, and to be satisfied in all the circumstances that it was fair, just and reasonable to impose a
However, the law on duty of care is laid out in Robinson v Chief Constable of West Yorkshire
FACTS: Two police officers attempted to arrest a suspected drug dealer. There was a struggle in which the three men knocked C to the ground and fell on her, causing her injuries. C
sought damages for personal injuries on the ground of negligence by the police officers.
HELD: Robinson holds that Caparo did not establish a tripartite test applicable to all negligence claims (), and Lord Bridge made it clear in Caparo that it was not intended to be applicable to all situations - Lord Bridge merely applied the facts of the case to that test.
Lord Reed in Robinson stated the law in :
"Properly understood, the Caparo test thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable."
THUS: Only in novel cases, or where the court is being asked to depart from the law (e.g.
James-Bowen) will the court make a judgment on whether imposing a DoC would be 'fair,
just and reasonable'. (The idea being that the FJR requirements should have been built into the previous authority.)
This approach ensures justice and reasonableness (since previous authorities have by necessary implication held that the DoC is fair, just and reasonable) and ensures certainty and consistency.
There are lots of factors determining whether a novel DoC should exist, including foreseeability,
reasonableness, the seriousness of the harm, whether the conduct was an act or omission, fairness,
individual responsibility, divided loyalties, waste of resources, Parliament's intentions, the separation of powers, how novel a claim is and the importance of remedying wrongs*.
*M&B say this should not be a factor.
Tofaris (2018): Lord Reed's view in Robinson is that the point of Caparo was to retreat from the idea in Anns v Merton of a single universally applicable test, with Caparo advocating an incremental approach. He notes the correct approach to be taken post-Robinson:
Where there is a line of authority establishing that a DoC is owed or not owed, the courts must follow that authority. Here it is "unnecessary and inappropriate" to consider whether a duty is "fair, just and reasonable" because the decision to recognise the duty was already founded on justice and reasonableness ().
Where UKSC is invited to depart from an established line of authority, it can appropriately examine what is "fair, just and reasonable" ().
Where there is a novel case in which the existing authorities do not provide an answer on whether a DoC exists, the courts must develop the law "incrementally and by analogy with established authority" (), including considering what is "fair, just and reasonable".
Robinson suggests that a 'novel' case = one which falls outside of an established category of liability or cannot be resolved by reference to established principles in the case law.
Lord Reed treated 'physical loss resulting foreseeably from positive conduct' as constituting an established category.(2)
Tofaris (2018): The relevance of Caparo factors (reasonableness, justice, proximity, fairness,
reasonable foreseeability) lies in considering whether the law ought to take an incremental step by analogy with established authority. Lord Reed also affirmed in  that policy considerations should only be taken into account where established principles do not provide a clear answer to the question of whether a DoC should be recognised in a novel situation (here the court will consider whether a DoC would be just and reasonable).
Reality sceptics say that D is not actually under a duty to C to act carefully, but rather simply that D
will be held liable to pay C compensation if D's lack of care results in C suffering some kind of harm.
In other words, the duty only arises when harm is done - if no harm is done, no duty existed. If this is true, then 'duty of care' is an empty concept. Conversely, essentiality sceptics say that D always owes C a duty not to negligently cause C to suffer foreseeable harm.
Hence, some say that a DoC is only breached when harm is actually caused (conduct plus resultfocused (CPR-focused) duty), rather than when D acts carelessly but just avoids causing C harm
(purely conduct-focused (C-focused) duty. A purely conduct-focused view is preferable since:
It is morally wrong to risk another's well-being.
Only C-focused duties can effectively guide behaviour (this is the function of the RoL).
Courts often find D liable in negligence despite the absence of harm.
Lord Atkin: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour" = C-focused (appeal to authority?).
5. Sometimes it is uncertain whether D's breach actually caused C's harm. Here the courts sometimes hold D liable to stop him 'getting away' with the breach impossible using CPRfocused view.
However, Nolan argues that since there must be actionable damage for a claim in negligence to be successful, there is no duty to not unreasonably endanger people. Alternatively, one could argue there is always a duty but one can only sue on it when it is breached and actionable damage results.
DUTY OF CARE: POSITIVE ACTS C must show that D breached a DoC geared towards protecting her from the type of harm for which she wants to sue D. Difficulty to establish a DoC: easiest hardest physical harm property damage psychiatric illness pure economic loss distress
DoC geared towards What has to be established protecting C from…
Physical harm It was reasonably foreseeable that D's actions would result in C suffering some kind of physical injury (Donoghue v Stevenson).
Property damage It was reasonably foreseeable that D's actions would result in property being damaged, and C had a sufficient interest in the property at the time it was damaged.
Psychiatric illness It was reasonably foreseeable that D's actions would result in C suffering some form of psychiatric illness, and there was a sufficient degree of proximity between D's acts and C's illness (various cases).
Pure economic loss There was a special relationship between D and C, or special circumstances that would make it 'fair, just and reasonable' to find that D
owed C a DoC geared towards protecting C from pure economic loss.
Pure distress There was a contractual relationship between D and C, under which D
undertook to perform some task for C with reasonable skill and care, and an important part of the undertaking was to secure some mental satisfaction for C or to save C from some sort of mental distress.
Page v Smith (1996) is unusual in that it allowed C to sue for psychiatric illness based on the breach of a DoC geared towards protecting C from physical injury HoL limited this to cases where the psychiatric illness is an immediate result of D's breach. In White, sub nom. Frost the HoL stressed that a claim for psych illness can only be based on a duty to protect from physical injury where the duty to protect from physical injury was breached. In the former case, there was in fact a breach -
it was simply that no harm flowed from the breach (reality sceptics would say that this makes no sense, as the duty only arises where harm is caused … how do they explain the duty to protect from psych injury arising?).
Lord Reid in The Wagon Mound (No 2) (1967): reasonable foreseeability means the possibility of C
being harmed in some way by D's conduct would not, before the event, have been regarded as being so "fantastic or far-fetched that no reasonable man would have paid any attention to it", or if there was in fact a "real… risk".
Dryden v Johnson Matthey (2018, UKSC) - 'personal injury' = a physical change making the sufferer appreciably worse off (than he would have been had D not acted negligently) in terms of his health or capability (even if that change was hidden and symptomless); an impairment; an injury to the sufferer's capacity to enjoy life.
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