Negligence: duty of care after Caparo and Robinson

Duty of care questions can look intimidating because the case law is large. The modern approach is, however, more disciplined than many candidates assume.

Start with established categories

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 confirmed that courts should not apply Caparo as a general three-stage test to every new case. In ordinary situations where a duty is already recognised (for example a driver to other road users, an employer to employees, or a doctor to a patient) the duty is simply applied. The question becomes whether the facts fall within an established category.

When the case is novel

Where no established category covers the facts, courts reason incrementally and by analogy with decided cases, looking at principle and policy. The three considerations associated with Caparo Industries plc v Dickman [1990] 2 AC 605 (foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty) remain useful as factors in that analysis, but they are not a checklist to be run in every case. The earlier Anns v Merton London Borough Council [1978] AC 728 two-stage test has long been rejected.

Foundations and the neighbour principle

Donoghue v Stevenson [1932] AC 562 is the origin of the modern law. Lord Atkin's neighbour principle is a unifying idea, not a rule of general application.

Key limits

• Omissions. There is generally no duty to prevent harm caused by a third party or to rescue a stranger. Exceptions include where the defendant assumed responsibility, created or controlled the danger, or had control over the third party. Michael v Chief Constable of South Wales Police [2015] UKSC 2 illustrates the general reluctance to impose positive duties on public authorities, and Poole Borough Council v GN [2019] UKSC 25 applies the approach to local authorities.
• Pure economic loss. Recovery is restricted. Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 supports the general exclusion of economic loss consequential on damage to property of others. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 recognises liability for negligent misstatement where there is an assumption of responsibility and reasonable reliance.
• Psychiatric harm has its own control mechanisms for secondary victims. Make sure you can distinguish primary from secondary victims before applying them.

Applying it in the exam

1. Ask whether the facts fit an established duty category. If yes, say so and move on to breach.
2. If the harm is economic, psychiatric or caused by an omission or third party, identify which special rule applies.
3. Only if the situation is genuinely novel should you reason by analogy and consider policy.

A common mistake is to spend time analysing foreseeability and proximity in a driver-and-pedestrian scenario where the duty is not in doubt. Spot the category first.

General educational information only. It is not legal advice, it does not predict any exam result, and UK SQE Course is not affiliated with or endorsed by the Solicitors Regulation Authority. Check the SRA website for current exam information.