Negligence: Duty of Care, the Neighbour Principle and the Caparo Test
Duty of care questions examine whether the defendant was ever in a relationship of responsibility towards this claimant at all, before you discuss how carelessly he behaved.
The neighbour principle
Donoghue v Stevenson established that a manufacturer owes a duty to the ultimate consumer of a product even without a contract. Lord Atkin's principle asks whom you must take reasonable care to avoid injuring: persons so closely and directly affected by your act that you ought reasonably to have them in contemplation.
From Anns to Caparo
Anns v Merton LBC once allowed a prima facie duty wherever harm was foreseeable, with policy reasons needed to displace it. After criticism, Caparo Industries plc v Dickman settled a three-limb approach for novel cases:
- Foreseeability of damage to the claimant or a class including him;
- Proximity of relationship (physical, temporal, relational);
- Fair, just and reasonable to impose the duty, which is where policy operates.
Established categories and limits
Where an established duty exists (driver and road user, doctor and patient, employer and employee, occupier and entrant, manufacturer and consumer), you need not run Caparo. In novel cases note the recurring controls: pure omissions and third-party acts generally attract no duty, except where the defendant assumed responsibility or created the danger; pure economic loss requires an assumption of responsibility (Hedley Byrne); psychiatric injury requires a recognised disorder, proximity of relationship and, often, presence at the aftermath (Alcock).
Worked example
A municipal council leaves a manhole uncovered on a pavement for three weeks and a pedestrian falls in. Foreseeability: pedestrians are an obvious class. Proximity: physical and direct - the council controlled the site. Fair, just and reasonable: it created the danger, the cost of covering is trivial, and no broader chilling effect on public services arises. Duty is owed. Compare a council that merely fails to warn about a widely known hazard it did not create.
Traps that cost marks
Treating Caparo as three cumulative elements in every case, rather than a framework for novel situations; confusing foreseeability of harm with foreseeability of the manner of harm; arguing policy for the defendant before establishing proximity; and forgetting that the neighbour principle is a general conception, not a substitute for analysis.