By Law Teacher
1. Introduction to Tort Law
Tort liability can be imposed in many instances that include negligent behaviour towards a person or land, negatively affecting a person’s reputation or limiting freedom of movement. This module will aim to explain and take you through how and why liability can be imposed on a defendant, giving you an in-depth understanding of the nature of tortious liability.
There are many torts that will be discussed in this module. They include, for example, libel, slander, nuisance, negligence, trespass, assault and battery. Thus, it is not possible to provide one definition that encompasses all torts, considering how each tort has its own specific characteristics. It is, therefore, best to think of the law of tort as the law of behaviour that is legally ‘wrong’ or ’tortious’, giving rise to an entitlement to a remedy for the claimant.
Whilst it may not be possible to precisely define what tort is, various principles can be identified that help establish when a tortious liability arises. It has to be noted, however, that there is no predominance of any one principle. The principles that can be turned to are:
- Retributive justice (punishment)
- Economic efficiency
- Loss distribution
Tort law also aims to protect individual interests from a harm that is actual or threatened. However, not all interests are protected and some benefit from better protection than others. This is as a result of the importance of an interest reflected by society through the years. The interests protected include:
- Personal harm
- Harm to property
- Harm to reputation
- Harm to financial interests
- Harm to the due process of law
2.1.1 Duty of Care – Introduction
Welcome to the first lesson of the second topic in this module guide – Negligence! Duty of care constitutes the first of the three primary elements of tort (duty of care, breach and causation). Although the term ‘duty of care’ can seem a little alien at first, it can roughly be thought of a responsibility of an individual to not harm others through carelessness. To establish a duty of care the Caparo three-stage test must be applied.
At the completion of this section, you should be comfortable understanding how to apply the Caparo three-stage test to establish whether a duty of care is owed. You will understand the development of the duty of care and the exceptions to owing a duty of care. This will enable you to deal with different factual scenarios effectively.
This section begins by discussing what a duty of care is and how the law in this area developed, leading to the current law and the Caparo three-stage test and how this test is applied. It then goes on to discuss specific exceptions, and surrounding factors influencing the outcome of different factual circumstances in finding duty of care.
Goals for this section
● To understand how to establish whether a duty of care is owed using the Caparo three-stage test.
● To understand how to deal with the exceptions to duty of care.
Objectives for this section
- To be able to define duty of care.
- To understand the development of duty of care.
- To be able to outline the Caparo three-stage test.
- To know the exceptions and special situations.
- To understand how to deal with duty of care and third party actors.
- To understand how duty of care operates in the Public Service and how immunity applies.
- To be able to understand how and why duty of care applies with Special Claimants.
2.1.2 Duty of Care Lecture
Duty of Care
What is a ‘Duty of Care’?
Although the term ‘duty of care’ can seem a little alien at first, it can roughly be thought of as the responsibility of an individual to not harm others through carelessness.
The Development of the Duty of Care
The legal basis for finding a duty of care has its roots in Donoghue v Stevenson  AC 562. Although, as will be noted below, there exists a more modern test to establish a duty of care, Donoghue v Stevenson provides the theoretical basis for the duty of care, and thus modern negligence, and so it is necessary to be familiar with the case.
Key to the decision in Donoghuev Stevenson is the reasoning of Lord Atkin (who led the majority of the court). Atkin held that a general duty of care could be said to exist between two parties under the ‘neighbour principle’, described in this key quote:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be–persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”
- Lord Atkin, Donoghue v Stevenson, at 44.
However, Lord Atkin’s description of the neighbour principle is relatively broad in scope, and is thus inclusive of a wide range of situations. As a result of this, a number of cases subsequently sought to limit the application of the neighbour principle, such as limiting it to cases involving physical harm or damage to property (Old Gate Estates Ltd v Toplis & Harding & Russell 3 All ER 209).
Following these restrictions, the law once again returned towards the application of a universal principle, with Anns v Merton London Borough AC 728 establishing a two-part test similar to the one employed in Donoghue.
The Current Law: The Caparo Test
The Caparo test is made up of three stages: foreseeability, proximity and fairness. This first stage revolves around whether it is foreseeable that the defendant’s carelessness could cause damage to the claimant. A prime example of foreseeability can be seen in the US-based case of Palsgraf v Long Island Railroad Co  248 N.Y. 339. In the case, although it was possible to trace the claimant’s injuries to the defendant’s negligence, in applying a test of foreseeability, the courts found that it was not foreseeable that the claimant would be injured.
The second stage is based on whether there is a relationship of proximity between the defendant and the claimant. This does not dictate that there must be physical proximity, rather that there must be a connection between the two. An example of proximity (or, rather, a lack of proximity) can be seen in Alcock v Chief Constable of South Yorkshire Police UKHL 5 – members of the general public coming across the aftermath of the Hillsborough disaster and suffering nervous shock as a result were held to not be owed a duty of care, because the link between the defendants and claimants was held to be too distant.
The third and final stage of Caparo involves establishing whether it would be fair, just and reasonable for the courts to find that the defendant owed a duty of care to the claimant. Owing to the vague nature of this criteria, this stage can be thought of as somewhat of a ‘safety valve’, allowing judicial discretion in cases where public policy might dictate that it would be unreasonable for a duty of care to be held to exist- Marc Rich & Co v Bishop Rock Marine Co Ltd UKHL.
So, if all three of these stages are passed, the case can be said to have satisfied the Caparo test, and thus a duty of care can be said to exist.
Exceptions and Special Situations
Liability for Omissions
Whilst a driver has a duty to not cause an accident through carelessness, they do not have a duty to help those involved in an accident they happen to come across. The principle of non-liability for omissions can be seen at work in Stovin v Wise UKHL 15. Non-liability also extends to warning – there is no general duty to warn someone of a harm.
There are some exceptions to the rule. The law provides three general groups of scenarios where an individual has a duty to act – where the defendant has control of a situation, where the defendant has assumed responsibility, and where the defendant has created or adopted a risk.
Control situations arise where a defendant has a high degree of control over an individual (and thus is held as owing a duty to exercise that control responsibly. For example, in Reeves v Commisioner of Police for the Metropolis 1 AC 360 the police were held responsible after an inmate on suicide-watch was able to kill himself.
Assumption of Responsibilitysituations involve, as might be expected, scenarios where one individual implicitly takes on a duty of care by merit of a contract or employment. For example, in Costello v Chief Constable of Northumbria Police EWCA Civ 1898 it was held that by merit of their joint employment, one had a duty of care to the other to act to prevent foreseeable harm from occurring.
Creation or Adoption of a Risk situations arise where a defendant creates a dangerous situation (including accidentally.)- Capital & Counties plc v Hampshire County Council 3 WLR 331.
Duty of Care and Third-Party Actors
For the vast majority of cases, the actions of third parties will not impart liability on claimants, and will usually be held as a novus actus interveniens, as per Home Office v Dorset Yacht Co Ltd. Thus, the general rule is that there is no duty of care to prevent a third party’s actions. However, there are exceptions to this rule, laid down in Smith v Littlewoods UKHL 18. These exceptions include where there is a special relationshipbetween claimant and defendant, where there is a special relationship between defendant and third party, where the defendant creates a source of danger and where the defendant fails to take steps to deal with a known danger created by a third party.
Duty of Care and Public Service Immunity
Overall, the stance of the courts is that public services do not have a duty of care towards individuals. This can be thought of in terms of the ‘fair, just and reasonable’ part of Caparo – essentially the courts are remiss to find that public services (e.g. police) have a duty to do a particular thing because this would have a negative effect on those services overall. Furthermore, allowing public services to be sued would cause significant resources to be put into defending the case, reducing the ability of that service to serve the general public. Compensation would be paid out of public service coffers, essentially allowing individual claimants to acquire tax payers’ money.
Finally, there are certain set situations in which a duty of care will be imposed, even if it would traditionally be legally unfeasible- Pre-natal Injuries:Burton v Islington Health Authority QB 204, and Rescuers: Ogwo v Taylor  AC 431.
2.1.3 Duty of Care Lecture – Hands on Example
Jack is the owner and sole employee of a small private nursery called Little Wonders. Following an economic downturn, Jack decides that the best way to promote his business would be through establishing a stellar safety record. Although Jack had a mandatory state safety inspection last year, Jack decides to have a private safety audit carried out, in order to emphasise just how safe his nursery is. He decides to employ Marla, who has set up her own nursery safety regulatory body – Sure Safe. Marla, inspects the nursery, and gives it the highest safety rating possible. During the inspection, she checks a child-proof gate used to prevent children from leaving the building and wandering out into the streets. She declares it to be safe.
The next day, Jack is temporarily distracted by an urgent phone call, and Tyler (a 3-year-old boy) decides to mount an escape attempt. It emerges that the catch holding the child-proof gate closed has become worn out through lack of maintenance, and with the lightest of pulls, the gate opens. Tyler leaves the nursery and walks around the corner. He finds a lighter which has fallen out of someone’s pocket, and in playing with it, accidentally starts a fire which spreads to a nearby warehouse.
A passer-by, Robert, notices the fire and calls the emergency services. The dispatcher tells the passer-by that a fire engine is on its way. Unfortunately, the dispatcher fails to send the call through to the local fire service, and the fire engine is not dispatched until 30 minutes later, when the dispatcher notices the mistake. It is a particularly quiet day, and so all fire engines in the area are ready to go, and waiting at the local station.
Shortly after making the call, Robert notices that on the outside of the building there is a large red button, marked ‘Oil Fire Sprinkler Activation’. He thinks this would help, and the button is far away from the fire, but he refuses to press it – he decides the warehouse is ugly, and so thinks that it would be nice if it was no longer there.
In the meantime, the warehouse suffers significant fire damage. When the fire brigade does arrive, they fail to notice the bright warning stickers on the warehouse’s exterior warning that it is used to house cooking oil. They spray the warehouse with water, which reacts violently with the burning cooking oil, causing the warehouse to burn to the ground within a matter of minutes.
You are interning at a solicitors and your supervisor brings the above set of facts to you. They want you to discuss the duties of care which might arise between those parties. You are told to not discuss matters of causation, breach or remoteness – your supervisor will address these herself, but does not have time to examine the arising duties. She tells you that there are five relationships she wants you to deal with.
1.Does a duty of care exist between Jack and the Warehouse Owner?
2.Does a duty of care exist between the Fire Service Dispatcher and the Warehouse Owner?
3.Does a duty of care exist between the Fire Service and the Warehouse Owner?
4.Does a duty of care exist between Marla and the Warehouse Owner?
5.Does a duty of care exist between Robert and the Warehouse Owner?
1)Jack does not cause the fire himself, instead it is a third party (Tyler) who causes the fire. This is, therefore, a matter of third-party action. Jack clearly has control over the third party – Tyler – and it is his job to ensure that Tyler is both safe and acting safely. This brings it under Home Office v Dorset Yacht Club, meaning that a duty of care exists between Jack and those harmed by Tyler’s actions should Jack fail to supervise him properly. It can be argued that under the Caparo test, it is not foreseeable that Tyler might start a fire. This can, therefore, be argued either way (although a child starting a fire by accident, when unsupervised, is not a great stretch.)
2)The emergency services line is a public service, and thus a number of specific rules apply. It should be noted that a general immunity applies, and so the presumption is that no duty applies. However, this presumption is rebuttable, and the fire dispatcher’s actions mirror those Kent v Griffiths. They promise the response of the fire services, but then fail to follow through with that promise. There is no question of the outcome of the failure to dispatch – all of the fire engines are available, so the only thing stopping them from attending is the mistake of the dispatcher. Because this is an overwhelming failure of the dispatcher, a duty of care can be said to exist.
3)The fire service itself can also avail itself of public service immunity – it has no general duty to
those it serves. However, the fact that it attends and makes matters worse though obvious incompetence will serve to rebut this presumption as per Capital & Counties plc v Hampshire County Council.
4)Marla is acting as regulatory body. However, there is no indication that she is acting as a public regulatory body, and indeed, it is indicated in the question that she is acting in a purely private capacity – there is already a safety inspectorate in operation, and she is merely supplementing it. This means that Marla will be unlikely to avail herself of public service immunity, distinguishing her situation from Marc Rich & Co AG v Bishop’s Rock Marine Co Ltd, The Nicholas H. Caparo can be argued either way – that it is foreseeable that mischief might occur should Marla negligently evaluated the safety gate, or otherwise that it is not
5)Although it is easy and safe for Robert to act, he refuses to. This makes the duty a matter of omission. Under Stovin v Wiseno duty will arise from an omission, and so Robert is not required to act to avoid liability.