Duty of care is the first hurdle in any negligence claim. Before you can even think about whether someone breached their duty or caused harm, you have to show that they owed a duty in the first place. If there is no duty, the claim fails at step one — end of story.
Duty of care questions are extremely common in SQE1. The examiner will often give you a scenario and expect you to work through whether a duty exists. Always start by asking: was the damage reasonably foreseeable? Then consider proximity and whether it is fair, just, and reasonable to impose a duty.
Donoghue v Stevenson is the case that launched modern negligence law. Mrs Donoghue drank a ginger beer that contained a decomposed snail. She became seriously ill. The problem? She had not bought the drink herself — her friend had. So she had no contract with the manufacturer, and under the old rules, she could not sue.
The House of Lords held that the manufacturer did owe Mrs Donoghue a duty of care. Lord Atkin gave his famous "neighbour principle" speech: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who is your neighbour? Persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation.
Donoghue swept away the old rule that you needed a contractual relationship to sue. It established that duty of care can exist between complete strangers, so long as the damage was reasonably foreseeable. This is the foundation of the whole of negligence law.
Think of Donoghue as the "no contract, no problem" case. Before this case, you could only sue someone you had a contract with. After Donoghue, a duty of care can arise purely from foreseeability of harm — the neighbour principle.
Donoghue established foreseeability as the starting point, but later cases showed that foreseeability by itself does not always create a duty. The courts also consider proximity and whether it is fair, just, and reasonable to impose a duty. This is the Caparo test, which we will look at shortly.
After Donoghue, the courts gradually expanded the situations in which a duty of care was recognised. By the 1970s, the courts were willing to find a duty in a very wide range of circumstances. The test became more structured over time.
Lord Wilberforce in Anns proposed a two-stage test for duty of care. First, is there a sufficient relationship of proximity between the parties such that the defendant should reasonably contemplate that carelessness on their part would cause damage to the claimant? If yes, then second, are there any considerations that ought to negative or limit the scope of the duty, the class of persons to whom it is owed, or the damages recoverable?
The Anns test was very generous to claimants. It allowed duty to be found in many new situations, including pure economic loss from defective buildings. Critics argued it went too far and opened the floodgates to claims. The House of Lords later pulled back from this approach.
The Anns two-stage test was effectively overruled in Murphy v Brentwood DC [1990], which held there is no duty of care for pure economic loss from defective buildings. The modern test is Caparo, not Anns.
The leading modern test comes from Caparo Industries v Dickman. The House of Lords held that three conditions must be satisfied before a duty of care arises: (1) foreseeability of damage — was the damage a reasonably foreseeable consequence of the defendant's conduct? (2) Proximity of relationship — is there a sufficiently proximate relationship between the parties? (3) Fair, just, and reasonable — is it fair, just, and reasonable to impose a duty of care?
The Supreme Court in Robinson reaffirmed Caparo as the correct test for duty of care. The case involved a police officer who was injured while trying to arrest a suspect. The court confirmed that the three-part test remains the leading authority, but noted that it should not be applied as a rigid checklist — the court must look at the overall relationship and circumstances.
In an exam, work through all three Caparo limbs even if the first one fails. The examiner wants to see that you understand the full framework. If foreseeability is clearly established, you still need to discuss proximity and policy. Marks are available for each limb you address.
All road users owe a duty of care to other road users. If you drive carelessly and cause an accident, you are liable for the injuries and damage you cause. This is one of the most straightforward applications of the neighbour principle — the damage from careless driving is clearly foreseeable, the parties are proximate, and there is no policy reason to exclude duty.
Manufacturers owe a duty of care to the ultimate consumer of their products, even if there is no contractual relationship between them. This was established in Donoghue v Stevenson itself. If you manufacture a defective product that causes injury, you are liable to the person who uses it, whether they bought it directly from you or not.
Builders owe a duty of care to people who will occupy or use the buildings they construct. In Anns v Merton LBC, the council was held to owe a duty to the purchasers of flats built with inadequate foundations. However, remember that Murphy v Brentwood later limited this — there is no duty for pure economic loss from defective buildings.
Schools owe a duty of care to their pupils. Teachers must supervise children with reasonable care and take steps to prevent foreseeable harm. A school that fails to supervise children properly during break time, leading to an accident, could be found liable in negligence. The duty is heightened because children are less able to look after themselves.
Doctors owe a duty of care to their patients. When a doctor treats a patient, there is a clear proximate relationship, the damage from careless treatment is foreseeable, and it is obviously fair, just, and reasonable to impose a duty. The duty extends to diagnosis, treatment, and advice. The standard of care is judged by the Bolam test (covered in Topic 2).
| Situation | Duty Owed To | Key Case | Notes |
|---|---|---|---|
| Road users | Other road users and pedestrians | General principle | One of the clearest examples of duty of care |
| Manufacturers | Ultimate consumers | Donoghue v Stevenson [1932] | No contractual relationship needed |
| Builders | Occupiers and users of buildings | Anns v Merton LBC [1978] | Limited by Murphy for pure economic loss |
| Schools | Pupils | Van Oosten v A-G of NSW | Heightened duty because of children's vulnerability |
| Doctors | Patients | Caparo test applied | Duty covers diagnosis, treatment, and advice |
| Employers | Employees | Wilson v Clyde Coal [1938] | Threefold duty: staff, equipment, safe system |
| Occupiers | Visitors (OLA 1957) | Wheat v Lacon [1966] | Statutory duty to keep visitors reasonably safe |
The list of recognised duty situations is not closed. The courts can recognise new situations where appropriate. In an exam, if you face a situation that does not fit neatly into an established category, apply the Caparo test and argue both ways.
Professionals owe a duty of care based on their specialised knowledge and skills. A solicitor, accountant, surveyor, or doctor is expected to exercise the skill and care of a reasonably competent practitioner in their field. If you hold yourself out as having specialist expertise, you will be judged against the standard of someone with that expertise.
Hedley Byrne is the landmark case on professional duty of care for negligent statements. A bank asked a credit reference agency about the financial standing of a customer. The agency gave a favourable reference but added a disclaimer. The bank extended credit, the customer went bust, and the bank lost money.
The House of Lords held that a duty of care can arise for negligent misstatements where there is a "special relationship" between the parties. This exists where: (1) the maker of the statement has special knowledge or skill; (2) the recipient reasonably relies on that skill and judgement; and (3) the maker knows or ought to know that the recipient will rely on the statement. The disclaimer in this case negatived the duty, so no liability arose — but the principle was established.
The concept of "assumption of responsibility" is central to professional duty of care. It can be express — where the professional explicitly agrees to advise — or implied from the circumstances. If a professional voluntarily provides advice knowing it will be relied upon, they may be held to have assumed responsibility. This was confirmed in Caparo v Dickman.
| Professional | Situation | Key Case | Outcome |
|---|---|---|---|
| Accountants | Preparing company accounts for shareholders | Caparo v Dickman [1990] | No duty — no assumption of responsibility to investors |
| Surveyors | Valuation report for mortgage lender | Smith v Eric S Bush [1990] | Duty owed — surveyor knew report would be relied upon |
| Solicitors | Preparing a will for intended beneficiaries | White v Jones [1995] | Duty owed to beneficiaries despite no contract with them |
| Employers | Providing references for former employees | Barclays Bank v O'Brien [2020] | Duty of care owed to recipient of reference |
A professional can disclaim responsibility for their advice. In Hedley Byrne itself, the reference agency's disclaimer ("without responsibility") prevented a duty from arising. For a disclaimer to be effective, it must be brought to the recipient's attention before they rely on the statement.
As a solicitor, you owe a duty of care to your clients and, in some situations, to third parties who rely on your work. The key question is always: did you know or should you have known that this person would rely on your advice? If yes, you owe them a duty too.
As a general rule, there is no duty of care to prevent harm caused by a third party or by natural events. You are not legally required to rescue someone in danger, even if you could easily do so. The law of negligence is about positive acts that cause harm, not about failures to act. This is a fundamental principle — you are not your brother's keeper.
The policy reasons are clear. Imposing a duty to act would mean everyone has a duty to help everyone else at all times. That would be unworkable and would represent a massive intrusion on personal freedom. There are, however, important exceptions where the law does impose a duty to act.
Smith v Littlewoods is the leading case on omissions. The defendants owned an empty cinema that was repeatedly vandalised by trespassers. They had taken some security precautions but not enough. The neighbouring council claimed the defendants should have done more. The House of Lords held there was no duty of care. The damage was caused by third-party trespassers, not by the defendants. The defendants had not created the danger and had not assumed responsibility for protecting the neighbour's property.
The key distinction is between failing to prevent harm and actively causing harm. If you drive carelessly and injure someone, that is a positive act and you are liable. But if you see someone drowning and do nothing to help, you have not committed a tort (unless you created the danger or assumed a duty). In an exam, always identify whether the defendant's conduct is an act or an omission.
When you see an exam scenario involving an omission, go through the exceptions: did the defendant assume responsibility? Is there a special relationship? Was there a statutory duty? Did the defendant create the danger? If none of these apply, the general rule applies — no duty for omissions.
Pure economic loss is financial loss that is not consequential upon physical injury or damage to property. For example, if a contractor's negligent work on a building causes the building to be worth less than it should be, that diminution in value is pure economic loss. The key distinction is that the building itself is not physically damaged — it was just built badly in the first place.
As a general rule, there is no duty of care for pure economic loss arising from negligent acts. The leading authority is Murphy v Brentwood DC [1990], which overruled Anns v Merton LBC. The House of Lords held that where a building is defective but not dangerous, the economic loss suffered by the owner is pure economic loss, and no duty of care arises.
The policy reasons are: (1) Floodgates — if pure economic loss were recoverable, potentially unlimited numbers of people could claim, and the defendant would face indeterminate liability. (2) The loss is often only financial and does not involve personal injury, so the case for compensation is weaker. (3) It is better dealt with by contract law, where parties can allocate risk between themselves.
This is a common exam trap. If someone negligently crashes into your car, the cost of repairing the car is property damage, and your lost earnings while you cannot work are consequential economic loss — both recoverable. But if you buy a house with defective foundations and the house is worth less as a result, that is pure economic loss — generally not recoverable in negligence.
The most important exception to the no-duty rule for pure economic loss is negligent misstatement. If a professional gives you advice that you rely on to your financial detriment, you may have a claim. The key is the "special relationship" — think Hedley Byrne and assumption of responsibility.
Psychiatric (or nervous shock) harm is a type of damage that can be recovered in negligence, but the courts impose strict controls. The main concern is floodgates — psychiatric harm is common and subjective, so allowing unrestricted claims could overwhelm the courts. For this reason, the law distinguishes between primary and secondary victims.
A primary victim is someone who is directly involved in the accident and is within the zone of physical danger. If a person is injured in a car crash and also suffers psychiatric harm as a result, they are a primary victim. They can recover for both physical and psychiatric injury. There are no additional control mechanisms for primary victims — the normal rules of negligence apply.
In Page v Smith, the claimant was involved in a minor car accident. He suffered no physical injury but developed a severe recurrence of chronic fatigue syndrome. The House of Lords held he was a primary victim because he was within the zone of physical danger at the time. A primary victim can recover for psychiatric harm even if no physical injury occurs, as long as physical injury was foreseeable.
A secondary victim is someone who is not directly involved in the accident but suffers psychiatric harm as a result of witnessing it or its aftermath. For example, a mother who sees her child killed in a road accident. The courts impose strict control mechanisms on secondary victim claims to limit the number of potential claimants.
Alcock is the leading case on secondary victims. It arose from the Hillsborough football stadium disaster, where 96 people were crushed to death. Relatives who watched the events live on television or heard about them later claimed for psychiatric harm. The House of Lords set out strict control mechanisms that must all be satisfied.
| Feature | Primary Victim | Secondary Victim |
|---|---|---|
| Definition | Directly involved in the accident, within zone of physical danger | Not directly involved; psychiatric harm from witnessing event or its aftermath |
| Control mechanisms | None — normal negligence rules apply | Strict Alcock criteria must be met |
| Physical injury required? | No — if physical injury was foreseeable | No — but psychiatric harm alone is not enough |
| Key case | Page v Smith [1996]; McFarlane v E.C. Coupland [1940] | Alcock v Chief Constable of South Yorkshire [1992] |
In Alcock, relatives who watched the Hillsborough disaster live on television were held NOT to be secondary victims. Perceiving events through television is not witnessing with your own unaided senses. This is a favourite exam trap — make sure the claimant was actually present at the scene.
For any psychiatric harm question, first ask: is this person a primary or secondary victim? If primary, normal rules apply. If secondary, run through all four Alcock criteria — all must be satisfied. If even one fails, there is no duty of care for the psychiatric harm.
Even where damage is foreseeable and the parties are proximate, the courts may refuse to impose a duty of care on policy grounds. This is the "fair, just, and reasonable" limb of Caparo. The courts have developed a body of case law where duty is excluded for specific policy reasons.
Hill is the leading case on policy-based exclusion of duty. The mother of the last victim of the Yorkshire Ripper sued the police for failing to catch the killer earlier. The House of Lords held that the police owed no duty of care to individual members of the public in the investigation of crime. Policy reasons included: (1) the floodgates argument — allowing claims would expose the police to claims from all victims of unsolved crimes; (2) it would divert police resources from fighting crime to defending claims; and (3) it would conflict with the police's public duty to investigate crime impartially.
In X v Bedfordshire, the House of Lords held that local authorities do not owe a duty of care to children in their care when exercising their statutory child protection functions. The court was concerned that imposing a duty would lead to defensive practice — social workers would become overly cautious and remove children unnecessarily to avoid being sued, which would harm the very children the system is meant to protect.
Gorringe concerned a local authority's duty in relation to road safety. A driver failed to see a "school" warning sign and hit a child who stepped into the road. The House of Lords held there was no duty of care owed by the local authority to the driver or the child in deciding whether to erect the sign. The exercise of statutory discretion in matters of public policy is generally protected from negligence claims.
| Case | Context | Policy Reason for Excluding Duty |
|---|---|---|
| Hill v Chief Constable of West Yorkshire [1989] | Police investigation of crime | Floodgates; diversion of resources; conflict with public duty of impartial investigation |
| X v Bedfordshire CC [1995] | Child protection by local authority | Defensive practice; conflict with statutory discretion; Parliament is the proper forum |
| Gorringe v Calderdale MBC [2004] | Road safety decisions by local authority | Exercise of statutory discretion protected; no proximity |
| Murphy v Brentwood DC [1990] | Pure economic loss from defective buildings | Floodgates; better dealt with by contract law |
| Alcock v CC South Yorkshire [1992] | Psychiatric harm to secondary victims | Floodgates; need for clear control mechanisms |
The fact that the defendant is a public body does not automatically exclude duty. In Robinson v Chief Constable of West Yorkshire [2018], the police did owe a duty of care to a member of the public during an arrest. The key is whether the specific function in question involves the kind of policy considerations that justify exclusion. You must analyse each situation on its own facts.
When faced with any negligence question, start with duty of care. Apply Caparo: (1) Is damage foreseeable? (2) Are the parties proximate? (3) Is it fair, just, and reasonable? Then check: is this an omission? Is it pure economic loss? Is it psychiatric harm to a secondary victim? Is there a policy exclusion? If duty is established, move on to breach.