← The hardest concepts in United Kingdom law
In one breath
In negligence the claimant must first show that the defendant owed them a duty of care, and foreseeable harm alone does not create one. Courts now decide new duty questions step by step, by analogy with established categories, rather than by applying one general test.
The picture
The stepping stones across a stream
To cross a stream you do not leap to the far bank. You step from one stone to the next, and each step must be close enough to the stone you stand on to be safe. If the next stone is a long jump away, the crossing is refused, however much you would like to be on the other side. The stones that countless people have already crossed on you may use without testing them again.
Duty of care is built the same way. The firm stones are the established categories: drivers to other road users, doctors to patients, employers to employees, manufacturers to consumers (Donoghue v Stevenson). For a new situation the court looks for the nearest established stone and asks whether this case is a fair step from it. The Caparo factors (foreseeability of harm, proximity between the parties, and whether it is fair, just and reasonable to impose a duty) describe what the court weighs. An earlier attempt to state one broad principle for every case was abandoned (Anns v Merton, later disapproved in Murphy v Brent).
Where the picture stops working
Stepping stones do not move, whereas legal categories do, and argument over which stone is nearest is where cases are fought. Policy plays a part a stream lacks: courts refuse a duty where it would conflict with other duties or expose defendants to liability to an unlimited class. Donoghue v Stevenson itself came from Scotland, whose law of delict works with the same idea of a duty to take reasonable care.
How it really works
- 1Ask whether the case falls within an established category, such as driver and road user, employer and employee, or doctor and patient. If it does, the duty is settled and the dispute moves on to breach.
- 2If the situation is new, find the closest established categories and ask whether the case is a reasonable incremental step from them.
- 3Look at the kind of loss. Direct physical injury is the easy case. Pure economic loss, psychiatric injury and failures to act need more, such as an assumption of responsibility by the defendant (Hedley Byrne v Heller).
- 4Use the Caparo factors as guides: reasonable foreseeability of harm to this claimant, a relationship of proximity, and whether imposing a duty is fair, just and reasonable.
- 5Apply the policy limits. A duty is withheld where it would undercut a statutory scheme, conflict with another legal duty, or open the door to indeterminate liability.
Why people get it wrong
- Assuming that foreseeable harm alone creates a duty. Foreseeability is necessary but never enough.
- Treating Caparo as a three-part test to be run afresh in every case. In established categories no such inquiry is needed.
- Mixing duty with breach. Duty asks whether the law imposes any obligation of care towards this claimant; breach asks whether the defendant fell short of the required standard.
- Assuming that a duty in physical injury cases carries over to economic loss. Those categories have their own extra requirements.
A worked example
The facts are invented
Quill & Co is paid by a landlord to inspect the gas pipes in a block of flats, and does it carelessly. A tenant, Kay, is injured when a pipe leaks. There is no identical earlier case.
The court looks for the nearest established categories. Inspectors who certify the safety of physical things know that residents rely on their work, the inspection exists to protect people like Kay, and the harm is physical injury, not a financial loss. The step from established cases is small, and no statute displaces a duty, so a duty is likely. Change the facts: Quill produces a valuation for the landlord’s bank, and Kay later reads it and buys a flat. That is economic loss. Without any assumption of responsibility towards Kay, the court is likely to refuse a duty.
Try it
A claimant says that, because the defendant could easily foresee that careless work would hurt someone like them, a duty of care exists as a matter of course. Is that right?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Donoghue v Stevenson, [1932] AC 562
- Hedley Byrne & Co Ltd v Heller & Partners Ltd, [1964] AC 465
- Anns v Merton London Borough Council, [1978] AC 728
- Caparo Industries plc v Dickman, [1990] 2 AC 605
- Murphy v Brent London Borough Council, [1991] 1 AC 398
Where to go next
Courses
Dictionary
More hard concepts in United Kingdom law
- Causation: the but-for test and its exceptions (Tort law)
- Remoteness of damage (Tort law)
- Vicarious liability (Tort law)
- The rule in Rylands v Fletcher (Tort law)
- Penalty clauses and liquidated damages (Contract law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. The United Kingdom has three legal systems: England and Wales, Scotland, and Northern Ireland. These pages mostly describe the law of England and Wales and say where Scots law differs when it clearly does; Northern Ireland law is often similar to English law but is not covered separately. Parliament is sovereign, but the devolved legislatures also make law within their powers. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources before relying on any rule.