Intro into Negligence

Intro into Negligence

Elements of a cause of action in negligence


Court is trying to come up with moral formula with legal consequences

Development of the general test


1)    Donoghue v Stephenson

Before Donoghue v Stephenson

  • List of situations where negligence was recognised no general principle. Technique seemed to be reason by analogy. No attempt to appeal to a broader underlining principle

It all started with Donoghue v Stephenson 1932

Facts: snail in ginger beer

What did the decision do?

  • It recognized that a manufacturer owes a duty of care to end consumers provided that there was no opportunity to detect the defect on the part of the consumer.
  • Exploded Privity fallacy
  • For later courts enacts aconflict- what is the best way to approach duty of care?
    • Do you use Lord Atkin’s approach or Lord Macmillan’s, this difference has defined duty of care since.
  • General test put forward by Lord Atkin:
    • Neighbour test- persons who are so closely and directly affected by the D’s act that he ought to have reasonably had them in contemplation as being so affected when directing their mind to the acts or omissions in question.
  • What was Lord Atkin trying to do?
    • Trying to yield an underlining principle
    • Appealing to morality and religion
  • There wasn’t complete unanimity on how to approach the duty of care.
    • Lord Atkin- neighbour test
    • LordMacmillan- emphasised reason by analogy
      • Idea you can have categories of duty of care rather than an underlining principle

Two stage test

2)    Anns v Merton 1978

  • Said Lord Atkin’s conception could only be workable if itwas expanded and given two distinct stages:
    • Sufficient relationship of proximity
    • Are there any countervailing factors which ought to reduce the scope of the duty?
  • This expansion didn’t prove to be convincing because the courts became uneasy about the second stage as it brought in considerations of policy.
  • HoL felt they had to redevelop and alter the general test again, this was done in a sequence of cases which culminated in Caparo v Dickman.

Three stage test

3)    Caparo v Dickman 1990

  • Facts: Case about financial loss. D’s were auditors of a company who inspected and validated the accounts of a company. It was alleged the auditors had negligently failed to spot that a company director had been guilty of fraud on a massive scale. Auditors had approved accounts which showed that the company was in a strong financial state but the reality was different. Relying on those audited accounts, C had launched a hostile take-over bid of another company but then realised the company was essentially worthless.
  • Did the auditors owe a duty of care?HoL reformulate general test of duty of care
    • There must be foreseeability of damage
    • Proximity of relationship
    • It has to be fair, just and reasonable in the circumstance to impose a duty of care.
  • In this reformulation the burden of proof seems to be on the C whilst in the Anns, the burden of proof on D.
  • Despite the efforts to allay fears of the floodgates, the Anns test was still considered too wide. In Caparo, the House of Lords overruled Anns and went back to the incremental approach whereby the claimant may only bring their action where they can establish an existing duty situation. In novel situations the question of whether a duty of care is now subject to the Caparo test.

Insight into the idea of proximity

Hill v Chief Constable of West Yorkshire 1989

  • Facts: mother of last victim of Yorkshire ripper, tries to argue that if the police had taken proper care in investigating they would’ve identified and arrested him sooner before her daughter was killed.
  • HoL: no duty of care owed because there was no relationship of close proximity between the police and murdered daughter, she was simply one of a broad class of potential victims. They might have recognised relationship if there was something that had indicated that the daughter was close to the police e.g. she’d gone to report a threat before she was killed- we are looking at a situation where D is made aware of the impact of their negligence.

Application of the three stage test

Parent duty to child

XA v YA 2010

  • Example of it not being just, fair or reasonable
  • In order for mom to have performed her duty, she would’ve had to leave abusive partner, get him removed or put the child in care. Court- it wouldn’t be just, fair or reasonable to require a parent to break up family.


Soldiers injured during combat

Smith v MOD 2013

  • The issues in the case concerned the preparation and not heat in the moment decisions
  • Courts said it wouldn’t be just, fair or reasonable as it would involve the courts investigating political decisions and how much goes into spending on military equipment – courts try and avoid cases which basically dictate how political decisions are made.


Police duty to victim of crime

Hill v Chief Constable of West Yorkshire 1989

  • There was no relationship of proximity in this case, and even if there had been one it would’ve been not just, fair or reasonable as imposing a duty on police would be inappropriate as it wouldn’t improve police standards and it would impose a detrimental frame of mind when undertaking their duties. Also resources better used in detecting and preventing crime rather than fighting court cases.

However are the above cases consistent with EU law?


European Convention on Human Rights

Article 6- Right to a Fair Trial

  • This section seems to be infringed by cases like Hill as a duty of care is need to claim in the first place, a C’s case may be struck out without it ever reaching court if the D can prove preliminary that there was no such duty owed in the first place.

Key case: Osman v UK 1999

  • Considered whether or not the striking out procedure where there is no duty of care, is consistent with Article 6
  • Facts: Osman was a schoolboy who had a weird teacher who had a crazy infatuation of him, teacher had done this before with another student. Boy didn’t want anything to do with the teacher, tragically teacher kills his dad and injures him, police unable to stop him, on the facts there does seemto be a relationship of proximity because the police knew. However the court applied the decision inHill- deemed not just, fair or reasonable to impose a duty so claimwas struck out. Osman says theCoA decision infringed on his EU rights. Two aspects to the decision:
    1. UK tried to argue that a person can only complain of being deprived of their right to fair trial if they have an arguable civil right, UK emphasized the decision in Hill showed Osman had no case. EU disagreed and said it was distinguishable and held there was an arguable civil right.
    2. It wasn’t proportionate as striking out mechanism gave the police blanket immunity and that wasn’t acceptable. Such immunity had to be proportionate and balance up the extent of the damage suffered and the degree of carelessness proved on the part of the D.
  • Point of the case- seems to require English courts from striking out a case because they deem there is no duty of care.


Effects of Osman have been limited by:


Z v UK 2001

  • EU took a different view of the same question.
  • Children alleged the local authority had been negligent to take them into foster care when they were being abused.
  • HoL held no duty of care owed. C’s took their case to the EU.
    • ECHR: there had been no breach of Article 6 because the duty of care test shouldn’t be seen as immunity, i.e. something protecting the D when they should be liable. Duty of care is a legal principle which determines whether or not someone is liable and because it shouldn’t be seen as an immunity it doesn’t satisfy the test for proportionality= possible for courts to strike out claims on the basis that no duty of care was owed
    • Ultimately seems that the attempt to strike out a duty of care immunity failed.


There has been clear impact of EU law on subsequent case law

Courts keen to say general principle governing duty of care = didn’t create blanket immunities.


Brooks v Commissioner of Police of the Metropolis 2005

Whether there is a duty owed by police to victims and eye-witnesses of crimes

  • Facts: notorious murder of Steven Lawrence who was murdered at a bus stop in broad day light. At the time had a friend with him who managed to escape racist gang and call the police, they arrived too late. When they first arrived treated Brook as if he’d committed the murder and not as a witness, failed to follow up things he was telling them about the gang- this treatment had such a profound effect on him that he developed psychiatric illness.
  • HoL: struck out claim on basis that no duty of care owed and applied Hill. Court very careful to say that the police didn’t have blanket immunity in the situation.
    • Analysis would’ve been different if the police had assumed responsibility towards Brooks i.e. said they’d look after Brook or if they were guilty of outrageous negligence.
    • HoL seems to be overly concerned in not appearing as if they are granting blanket immunity to the police in this case.


Van Colle v Chief Constable of Hertfordshire 2009

  • Reported alongside Smith v Constable of Sussex
  • Smith Case: C involved in relationship with another man, relationship gone wrong and two men fell out. Other man wasn’t happy about this and made a series of threats against Smith, who reported the threats, police didn’t do anything or even look at the threatening messages. Smith’s former partner attacked him with a hammer. Smith sues police alleging they’d been negligent in protecting him.
  • Majority of the court: didn’t apply Brooks and Hill reasoning.
  • Casts doubt on the situation in brooks about outrageous negligence actually applying
  • Shadow of EU law gone away?
    • Keep in mind- control device of filtering out claims for whatever reason, how do we identify situations where we won’t allow compensation?
    • Should it be a question of analogy or should there be a broad concept?
    • Issue- how might a duty of care influence/manipulate/distort the way in which D’s carry out their roles and functions.




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