NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

SUBJECT: LAW OF TORTS

PROJECT TOPIC: NATURE AND SCOPE OF DUTY OF CARE

SUBMITTED TO:

SUBMITTED BY:

ACKNOWLEDGMENT
1
I take this opportunity to thank everyone who helped me out in completing my project
directly or indirectly. I show a special token of gratitude towards our Professor Kavita
Singh, our Law of Torts teacher, without whose guidance and support, it would have been
pretty difficult to complete this project. I would also like to thank NLIU’s library, which
helped me a lot in the making of this project. At the end I would also like to thank my parents
for their endless support and true guidance. I acknowledge that without their help this project
would not have been seen this day.

2
 PREFACE
Despite the difficulties, lawyers need to have a conceptual framework within which to decide
whether there is the basis of a claim or the possibility of a good defence, and it is now well
established that, in order to succeed in a claim for negligence, the claimant must prove each
of three elements: first, that a legal duty of care is owed to him or her by the defendant;
secondly, a breach of that duty; thirdly, a causation link between the breach of duty and the
injury or loss. Linked to the element of causation, the claimant must establish that the damage
which was suffered is not regarded in law as too remote. If the claimant is successful in
proving each of these elements, the value of the claim (quantum) must be assessed. It is the
framework which is set out here under three general headings: (1) duty of care; (2) breach of
duty; (3) damage.

Each of these elements requires detailed consideration, and there are numerous authorities to
be examined under each of the three headings, as the tort of negligence has been developed
for the most part through the cases.

Although the law has moved on since Donoghue v Stevenson and is still evolving, the legal
framework within which negligence has developed owes to that case.

Duty of care may be considered a formalization of the social contract, the implicit
responsibilities held by individuals towards others within society. It is not a requirement that
a duty of care be defined by law, though it will often develop through the jurisprudence of
common law.

At common law, duties were formerly limited to those with whom one was in privity one way or
another, as exemplified by cases like Winterbottom v. Wright (1842). In the early 20th century, judges
began to recognize that the cold realities of the Second Industrial Revolution (in which end users were
frequently several parties removed from the original manufacturer) implied that enforcing the privity
requirement against hapless consumers had harsh results in many product liability cases. The idea of a
general duty of care that runs to all who could be foreseeably affected by one's conduct (accompanied
by the demolishing of the privity barrier) first appeared in the judgment of Brett MR (later Lord
Esher) in Heaven v Pender (1883). Although Brett J's formulation was rejected by the rest of the
court, similar formulations later appeared in the landmark U.S. case of MacPherson v. Buick Motor
Co. (1916) and, in the UK, in Donoghue v Stevenson (1932). Both MacPherson and Donoghue were
product liability cases, and both expressly acknowledged and cited Brett's analysis as their inspiration.

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 TABLE OF CONTENT
 Statement of Purpose…………………………………………… 5
 Introduction……………………………………………………….6
 Research Objectives……………………………………………..7
 Hypothesis…………………………………………………………8
 Research Methodology…………………………………………..9
 What is Duty of Care? ………………………………………….10
 Duty as an Essential Component of Negligence……………….11-12
 Development of General Duty of Care…………………………..12-15
 Nature of Duty of Care…………………………………………….16-35
 Scope of Duty of Care………………………………………………35-38
 Case Laws…………………………………………………………….39-47
 Conclusion……………………………………………………………..48
 Bibliography……………………………………………………………49

4
STATEMENT OF PURPOSE

 TO DO A STUDY ON THE NATURE AND

SCOPE OF DUTY OF CARE AND LOOK
INTO ITS VARIOUS ASPECTS.
 TO DO AN ANALYSIS ON THE NAUTE AND
SCOPE OF DUTY OF CARE AND ITS
PRACTICAL APPLICATIONS.

5
 INTRODUCTION
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring
adherence to a standard of reasonable care while performing any acts that could foreseeably
harm others. It is the first element that must be established to proceed with an action in
negligence.

Lord Oliver's speech in Caparo Industries plc. Vs. Dickman summarizes the test for a
duty of care:

 The harm which occurred must be a reasonable foreseeable result of the

defendant's conduct;
 A sufficient relationship of proximity or neighborhood exists between the
alleged wrongdoer and the person who has suffered damage;
 It is fair, just and reasonable to impose liability.

A breach of duty occurs when one person or company has a duty of care toward another
person or company, but fails to live up to that standard. A person may be liable for
negligence in a personal injury case if his breach of duty caused another person's injuries.

In tort law, an individual may owe a duty of care to another, to ensure that they do not suffer
any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is
imposed upon the tortfeasor to compensate the victim for any losses they incur. The idea of
individuals owing strangers a duty of care – where beforehand such duties were only found
from contractual arrangements – developed at common law, throughout the 20th century. The
doctrine was significantly developed in the case of Donoghue v Stevenson, [1] where a
woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care,
where it had been negligently produced. Following this, the duty concept has expanded into a
coherent judicial test, which must be satisfied in order to claim in negligence.

Generally, a duty of care arises where one individual or group undertakes an activity which could
reasonably harm another, either physically, mentally, or economically. This includes common
activities such as driving (where physical injury may occur), as well as specialized activities such as
dispensing reliant economic advice (where economic loss may occur). Where an individual has not
created a situation which may cause harm, no duty of care exists to warn others of dangerous
situations or prevent harm occurring to them; such acts are known as pure omissions, and liability
may only arise where a prior special relationship exists to necessitate them.

6
RESEARCH OBJECTIVES

The aim of this project work is to study the nature and

scope of the duty of care and do an exhaustive research
on the nature and scope of duty of care and cite relevant
case laws, and to also cite relevant examples for easy
understanding.

7
 HYPOTHESIS

As the world is changing rapidly, Law has to keep pace with it. With the
development in law various concepts have been evolved such as the concept of
duty of care which is elaborated in this project work. The nature of the duty of
care has changed with time owing to cases like: - Anns vs. Merton Borough
Council (1978) and Caparo Industries Ltd. vs. Dickman (1990) enunciated
the two – stage test and the three – stage test respectively which changed the
concept of the duty of care. With the changing nature of duty of care its scope
has also widened so as to include the concept of Standard of care and
Reasonable man and the concept of risk. Thus the changing nature of duty of
care has brought about a change in its scope that is the scope has widened.
Duty of care has emerged as an essential ingredient of tort and now forms an
indispensable element in determining the liability.

8
 RESAEARCH
METHODOLGY

This project work includes only the Doctrine

method and no field study is involved.

9
 WHAT IS DUTY OF CARE?
In general a duty of care is defined as a moral or legal obligation to ensure the safety or
well-being of others. A situation where an employer owes a duty of care to his employees is
a real life example of a duty of care which a person owes to his/her neighbor or employees.
But in torts a duty of care is given a much broader theme as it is evident from this definition
given below:

In tort law, a duty of care is a legal obligation which is imposed on an individual

requiring adherence to a standard of reasonable care while performing any acts that
could foreseeably harm others. It is the first element that must be established to proceed
with an action in negligence. The claimant must be able to show a duty of care imposed
by law which the defendant has breached. In turn, breaching a duty may subject an
individual to liability.

The first matter to be established is that the defendant owed a duty of care to the
claimant. Unless it is possible to establish this in the particular circumstances of the
case, there will be no point in considering whether an act or omission which has
resulted in harm was negligent. The tests for deciding whether or not a legal duty of
care is owed were established. The existence of duty of care depends upon two
possible tests:

 Demonstrating that the situation under consideration falls within a category of duty that
has already been established by a precedent.
 If the situation is one which has not been categorized under test one, establishing one
or more of the factors are present- foresight, proximity and justice.

Duty of care may be considered a formalization of the social contract, the implicit
responsibilities held by individuals towards others within society. It is not a
requirement that a duty of care be defined by law, though it will often develop
through the jurisprudence of common law.

10
 DUTY OF CARE AS AN
ESSENTIAL COMPONENT
OF NEGLIGENCE

There are three essentials of negligence which involve duty of care. There are differing
opinions as to what elements constitute a cause of action in negligence. A common approach
is that the plaintiff must establish that: 1) a duty of care is owed to the plaintiff; 2) there has
been a breach of that duty; 3) damage has resulted from that breach. The American approach
consists of 1) a duty of care requiring the actor to conform to a certain standard of conduct; 2)
failure to conform to that standard; 3) a reasonable close causal connection between the
conduct and the resulting injury, or “proximate cause”; 4) actual loss or damage to the
plaintiff.

However there are three bread features:

 Duty of care to the plaintiff: It means a legal duty rather than a mere moral, religious
or social duty. The plaintiff has to establish that the defendant owed to him a specific
legal duty to take care of which he has made a breach. There is no general rule of law
defining such duty. It depends in each case whether a duty exists. Duty is “an
obligation, recognized by law, to avoid conduct fraught with unreasonable risk of
danger to others”. It arises when a person is in a position where everyone of ordinary
sense would recognize that if ordinary care were not used in the circumstances,
danger would arise.
 Breach of duty: Breach of duty means non - observance of due care which is required
in a particular situation.
 Damage: It is also necessary that the defendant’s breach of duty must cause damage to
the plaintiff. The plaintiff has also to show that the damage thus caused is not too
remote a consequence of the defendant’s negligence.

11
Thus we can conclude that the concept of duty of care is an essential element of negligence.
Going by the precedents in those cases of negligence where there is a duty to take care
negligence was treated as a specific tort in itself and not simply as an element of tort.

DEVELOPMENT OF
GENERAL DUTY OF
CARE

Prior to 1932, the year of the Appeal Court's decision in Donoghue v Stevenson 1(1932), there
was no standardized duty of care in negligence cases. The wrong, or tort, was acknowledged
in certain situations. These situations depended upon the courts finding that a duty was owed.
Examples included road accidents, bailments and dangerous goods. So the tort existed but its
application was limited to these special circumstances and questions arose as to whether this
could be justified.

In Donoghue v Stevenson the opportunity arose for Lord Atkins to draw up a general rule or
principle which would cover all the situations where the courts had already held that a party
could be held liable in negligence. Donoghue v |Stevenson is of course the well-known case
of the rotting snail in a bottle of ginger beer. May Donoghue bring a claim for damages
against David Stevenson after finding the rotting snail in a bottle of ginger beer made by
him? The problem at the time was who could Ms. Donoghue sue? She was unable to sue the
owner of the café successfully, either in contract or tort. Mrs. Donoghue’s only possible
recourse was to sue Stevenson, the manufacturer of the ginger beer. Success depended on the
question:
“…whether the manufacturer of an article of drink sold by him to a distributor, in
circumstances which prevent the distributor or the ultimate purchaser or consumer from
discovering by inspection any defect, is under any legal duty to the ultimate purchaser or
consumer to take reasonable care that the article is free from defect likely to cause injury to
health.”

Lord Atkins stated: "The rule that you are to love your neighbor becomes in law, you
must not injure your neighbor; and the lawyer's question, who is my neighbor?
Receives a restricted reply. You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbor. Who, then, in
1
(1932) AC 562 : 48 TLR 494

12
law is my neighbor? 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 in
question."

The neighbor test, as laid down by Lord Atkins, has been criticized for being too wide.
However it was welcomed in the sense that lawyers were able to argue that why should the
tort only be allowed in limited situations? Why could it not be allowed in new situations, not
previously dealt with? No doubt it was equally unclear to clients as to why some claims
appeared to be acceptable but not others.

In any event the case of Home Office v Dorset Yacht Co (1970) 2enabled Lord Reid to give
consideration to the matter and he formed the view that Lord Atkins’s rule should apply (in
other words a neighbor relationship existed) unless there was some very good reason why it
should be restricted. This would have represented a major step forward in the widening of the
tort of negligence and the circumstances when a duty of care arose.
The basic elements of a tort action in negligence began to emerge. These were that:
There was an existence of a duty of care;
There had been a breach of duty based on an objective test;
Damage had resulted as a consequence of the breach based on the 'but for' test.

There was no recognition of the need for Parliament to intervene at this time as a matter of
policy or public safety and the judiciary were content to allow the matter to evolve on a case
by case or piecemeal basis. The courts continued to develop principles.

For example, it was not long before the courts recognized that principles needed to be
established in respect of the assessment of damages. As a result, the courts decided that they
would not allow damage that was too remote a consequence of the breach. The judiciary was
conscious that liability of this nature could give rise to substantial claims in commercial
transactions of many kinds and that if the damage were too remote or unforeseen this might
produce unfairness and difficulties in assessing risk.

In Anns v Merton London Borough Council 3(1977) the House of Lords developed a new two
part test. The test was based in part on the issue of proximity. Lord Wilberforce stated "In
order to establish that a duty of care arises in a particular situation, it is not necessary to bring
the facts of that situation within those of previous situations in which a duty of care has been
held to exist. Rather the question has to be approached in two stages. First one has to ask
whether, as between the alleged wrongdoer and the person who has suffered damage there is
a sufficient relationship of proximity or neighborhood such that, in the reasonable

2
(1970) 2 All ER 294 : (1970) 2 WLR 1140
3
(1977) 2 All ER 472

13
contemplation of the former, carelessness on his part may be likely to cause damage to the
latter - in which case a prima facie duty of care arises...........”
The second test according to Lord Wilberforce was “...........secondly, if the first question is
answered affirmatively, it is necessary to consider whether there are any considerations
which ought to negative, or to reduce or limit the scope of the duty or the class of person to
whom it is owed or the damages to which a breach of it may give rise”.

Unfortunately it was not long before problems began to emerge with the test in Anns. Such
questions as 'was the test too broad so as to make life difficult for insurers?' and 'how did the
test address the question of fairness between the parties?’ The test does after all place a great
deal of responsibility upon the shoulders of judges as to whether a situation falls within the
test. How was the second part of the test to be applied in a situation which fell outside of that
of Anns?

Finally, there was concern that the test opened the floodgates with the concept of
'contemplation' or 'foreseeability'.
Criticisms were voiced in the following cases Peabody Donation Fund v Sir Lindsay
Parkinson 4(1984) per Lord Keith; Murphy v Brentwood DC and Yuen Kun-yeu v AG of
Hong Kong (1987).5

The arguments continued and in Rowling v Takaro Properties (1987) Lord Keith voiced
further concerns about a 'too literal' application of the test in Anns. As a result of such
concerns a new test has emerged through the work of Lord Bridge in the case of Caparo
Industries v Dickman6 (1990). The essential elements can now be said to be:

 foreseeability of the damage (identified in such cases as Topp v London Country Bus
(SW); Gunn v Wallsend Slipway and Engineering Co, Jolley v London Borough of
Sutton);
 a sufficiently 'proximate' relationship between the parties (as illustrated by such cases
as Hill v CC of West Yorkshire, Dorset Yacht v Home Office);
 It must be fair, just and reasonable to impose such a duty (Hemmens v Wilson Browne;
Ephraim v Newham LBC).
Finally we should not simply accept that the new test laid down by Lord Bridge is the end of
the matter. There is the matter of policy considerations which play an important part in the
development of the tort of negligence. In some situations by reason of policy, the courts have
denied a claim:

4
(1984) 25 BLR 108
5
(1987) 2 All ER 705 : (1988) AC 175 (PC)
6
(1990) 1 All ER 568

14
  Where the claimant is the author of his own misfortune (Philcox v Civil Aviation
Authority (1995))
 a finding of a duty of care would lead to unreasonable defensive practices by
defendants seeking to avoid claims for negligence (Hill v CC of West Yorkshire
(1988) and X (minors) v Bedfordshire CC (1995))
 for policy reasons the courts have held that certain relationships between the parties
warrants a particular decision - e.g. Lawyers Rondel v Worsley, Hall v Simons; Police
Hill v CC of West Yorkshire, Reeves v MPC; Judges Sirros v Moore; Fire-fighters
Capital and Counties v Hampshire CC.

There is therefore a degree of discretion allowed to the judges and the issue of them having
too much say in this defence has not entirely gone away. Is it right or necessary that the
judges should have their say over fairness as well as policy?

There also remains the issue of whether the later Caparo test is any different than the
neighbor principle, what is the difference between the tests or is it really a matter of
application by the judges? These discussions may be interesting and hold some merit but for
the parties themselves their claim or liability may rest upon such arguments, and in the hands
of the lawyers this is likely to cost money in terms of their time and fees.

There is also the argument that in this technological age of development and advancement the
law needs to grow and develop to meet the ever changing needs of society so that it is
perhaps inevitable that the law of negligence is bound to be about staying alert to such
changes and about how they should be addressed.

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NATURE OF DUTY OF
CARE
It is a question of law whether in any particular circumstances a duty of care exists. Before
1932 there was no general principle. The law had been built up in disconnected slabs
exhibiting no organic unity of structure. In 1932 an attempt was made in the House of Lords
in Donoghue v. Stevenson7 to formulate some general criterion for the existence of the
proximity which would give rise to a duty of care.

In torts the duty of care concept has set out a framework under three general headings:
 Duty of care: Duty of care is basically an omission to act when there was a need for
such act or an omission incurs liability when there is a duty to act. The point can be
explained by referring to the well-known example that a person cannot be held
responsible for the omission of not rescuing a stranger child whom he sees drowning,
even though he can rescue him without any appreciable risk or harm to himself. But
the result would be different if the child is one for whose safety and welfare there is a
duty laid on the person who finds him drowning. Therefore, in the above example, a
parent or guardian will be held liable for failure to attempt a rescue, for it would then
be a case of an omission where there is a duty to act. Another example is that when a
person on whose land a hazard naturally occurs and which threatens to encroach on to
another’s land thereby threatening to cause damage, is under a duty, if he knows or
ought to know of the risk of encroachment, to do what is reasonable in all
circumstances to prevent the risk of the known or foreseeable damage to the other
person or property, and is liable in nuisance if he does not.

 Breach of duty: The second matter to be considered is whether the defendant was in
breach of the duty of care. The element lies at the very heart of the negligence action.
It involves consideration of whether the act or omission of which the claimant
complains gives rise to liability. This element of negligence therefore involves proof
of fault in legal terms on the part of the defendant, and in law fault means acting
unreasonably in the particular circumstances. This often happens when the risk of

7
[1932] UKHL 100, [1931] UKHL 3, [1932] AC 562, 1932 SC (HL) 31

16
 harm arising from an activity outweighs the cost or inconvenience of taking
precautions to avoid it. Like duty of care this involves considerations of
foreseeability.

 Causation and remoteness of damage: Under normal circumstances it is essential to

prove damage for a negligence claim to succeed. Thus in Johnston vs. Nei
International Combustion Ltd8, the claim failed because the claimants were unable to
establish that they had suffered any damage in the legal sense, even though there were
pleural plaques present in their lungs. Very recently a possible exception to the rule
was laid down by the House of Lords in Chester vs. Afshar9, but that rule applies only
in extremely specialized circumstances in relation to negligent failure to inform a
patient of the risk involved in medical treatment.
The third question is whether the breach of duty complained of was the cause of the damage
suffered. The burden of proof is on the claimant to establish that the negligent act caused, or
substantially contributed to, the damage or injury which he or she suffered. Once again facts
are important. It is not always a simple matter to prove causation, and expert evidence can be
crucial. This aspect of causation depends upon on proof of factual matters. Even if the factual
aspects of causation can be proved, there arises the question of ‘remoteness of damage’.
Assessment of the damages is often closely related to issues of causation. For example, if the
claimant states that he has suffered a back injury through being required to lift heavy objects
at work without proper supervision; medical experts will be asked to give evidence about the
injury which was sustained. There may be a dispute about how much of the injury was caused
by the work accident and how much arose naturally through the natural process of aging. The
answer will affect the award of damages many such disputes arise in personal injury cases,
and the parties often reach a compromise and settle the case out of court. Such factual matters
may significantly affect the quantum of damage.

Significant points about the duty of care as derived from the case Donoghue vs.
Stevenson10 :

 Negligence is a separate tort in itself when there is a duty of care involved in the case.
 An action for negligence can exist whether or not there is a contract between the
parties
 An action for negligence will succeed if the plaintiff can prove: a duty of care is owed
by the defendant to the plaintiff; a breach of that duty by the defendant; resulting
damage which is not too remote.

8
[2007] UKHL 39
9
[2004] UKHL 41
10
[1932] UKHL 100, [1931] UKHL 3, [1932] AC 562, 1932 SC (HL) 31

17
  In order to establish the existence of a duty of care the neighbor principle, based on
reasonable foresight, must be applied. This is a minimum requirement and would not
justify liability in all cases.
 A manufacturer of drinks owes a duty of care to the consumer not to cause injury by
negligently allowing foreign bodies to contaminate those products.

Developing a universal test of notional duty:

Lord Atkin’s foreseeability and proximity test was clearly intended to be of general
application, capable of assisting courts in determining the scope of the notional duty in
relation to all kinds of acts and omissions. But it was only the means by which the ratio of
Donoghue was determined and not the ratio itself which was confined to the liability of a
manufacturer of goods towards ultimate consumers. Hence, courts were not bound to apply
the Atkin test for many years remained reluctant to utilize it, particularly in the face of prior
authority denying the notional duty of care. The key change of attitude came with the House
of Lords decision in Dorset Yacht Co. Ltd. vs. Home Office11, where the test was used to
support the conclusion that prison officers owed a notional duty of care in respect of the
custody of prisoners to owners of nearby property likely to be damaged if prisoners escaped.
The likelihood that the property would be damaged meant that the owners were closely and
directly affected by the officers’ conduct and hence, the requirement of proximity was
satisfied.

The Test for Determining the Existence of a Duty of Care:

If it has not been established in a previous case that a duty of care exists in a particular
situation, the modern approach to deciding whether a duty of care exists in a novel situation
involves applying one or more of three tests based on:

 Foresight
 Proximity
 Considerations of justice and reasonableness in imposing the duty (Caparo Industries
plc. Vs. Dickman12)
 Foresight: In Donoghue vs. Stevenson13, the notion of foresight of the claimant as a
member of a group who is likely to suffer harm as a result of the defendant’s act or
omissions was notionally of importance as a deciding factor for liability. However,
although it is possible to find cases in which it is argued purely on the question of
foresight that a duty of care exists, it is too simplistic to suggest that foresight or
11
HL ([1970] AC 1004, [1970] 2 WLR 1140, [1970] 2 All ER 94, Bailii, [1970] UKHL 2)
12
[1990] 2 WLR 358

13
(1932) AC 562 : 48 TLR 494 : 147 LT 281(HT)

18
 ‘reasonable contemplation of harm’ alone is the test for existence of a duty of care. It
should be regarded as simply one aspect to be weighed in the balance. Many of the
cases cannot be explained by reference only to foresight. What began to happen after
1932 was that judges interpreted the meaning of ratio decidendi of Donoghue vs.
Stevenson by stating it in abstract terms focusing on the ‘neighbor principle’.
Whenever a novel fact situation presented itself, the judge would ask whether a duty
of care was owed in that situation. If the judges thought it appropriate to compensate
the claimant in a particular case, it was a fairly straightforward matter of deciding that
a duty of care was owed by the defendant to that claimant, and the rest followed,
provided of course that breach and consequent damage could also be established.
This ‘backward reasoning’, often thinly disguised and based on notions of judicial
policy, is an important feature of tort, and much turned upon the decisions which
followed quickly upon Donoghue vs. Stevenson. Manufacturers of many different
kinds of products began to seek advice from their lawyers and insurers as to whether
the newly developing law would apply to their goods.
Within a matter of a few years, it was decided that a duty of care was owed by
manufacturers of clothing to their consumers. In the case Grant vs. Australian
Knitting Mills14, the claimant suffered dermatitis caused by a chemical used in the
manufacture of woolly underpants made by the defendant. It was held that a duty of
care was owed to him and the defendants were liable even though the illness he
suffered was extremely rare (one complaint in 5 million).
It is still possible to find decisions which are arrived at using the simple test of
reasonable foresight. For example, in Topp vs. London Country Bus (South West)
Ltd.15, the claimant was unsuccessful because he was unable to establish that the
defendant ought reasonably to have foreseen that a joy-rider would have stolen the
bus which his employee left unattended in a lay-by. His wife was killed through the
negligence of the unidentified joy-rider when he collided with her and knocked her
off her bicycle.
In Margereson vs. JW Roberts Ltd, Hancock vs. Same16, it was held that the owner of
an asbestos factory should reasonably have foreseen that children who played near the
factory might in later life; develop pulmonary injury through dust contamination. A
duty of care was owed to them.

 Proximity: Closely related to foresight is the notion of ‘proximity’. This concept was
considered in Donoghue vs. Stevenson itself and was emphasized in the early cases on
negligence. In some instances, proximity has become a more important consideration
than foresight as a device for controlling the existence and scope of duty of care in
personal injury cases. In Yuen Kun Yeu vs. Attorney General of Hong Kong17, Lord
14
[1936] AC 85
15
[1993] 1 WLR 976
16
[1996] PIQR 358
17
[1988] AC 175

19
 Keith referred to proximity as a synonym for foreseeability on one the hand, and on
the other as referring to the whole concept between the claimant and the defendant as
described in Donoghue vs. Stevenson by Lord Atkin.
In many instances, the concept of proximity is but one of the factors which may apply
in the process of judicial reasoning, whereby judges are enabled to arrive at the
decision they believe to be just in individual cases. Sutradhar vs. National
Environmental Research Council18 is an example of a case in which the House of
Lords decided that there was insufficient proximity between the parties to establish
the existence of a duty of care. One of the defendant’s department, BGS had
conducted a survey of water supplies in Bangladesh. In keeping with the usual
practice, it did not test the water for arsenic. The results of the survey were sent to
various organizations. The claimant alleged that he has sustained serious injuries as a
result of drinking water contaminated by arsenic. The House of Lords held that there
is insufficient proximity between the parties, in sense of control over and
responsibility for the danger, to give rise to a duty of care. In any event, there was no
duty to test for arsenic. The claim also failed on the preliminary point that there was
no implied representation by BGS that the water was free from arsenic.

 What is fair, just and reasonable: The duty concept has continued to evolve. From a
series of decisions in the late 20th century, it appears that the test for the existence of a
duty is now approached in three stages, the three of which allows the court to develop
judicial policy.
After a long process of evolution, in which the notions of foresight and proximity
were relatively quickly established, the concept of fairness and justice was
incorporated into the test for duty of a care. The approach recommended in the
leading case, Caparo Industries vs. Dickman19 is to deal with the question of duty of
care by applying three criteria:
1. The first is to consider whether the consequences of the defendant’s act were
reasonably foreseeable;
2. The second is to ask whether there is a relationship of proximity between the
parties;
3. And the third is to consider whether in all the circumstances it would be fair,
just and reasonable that the law should impose a duty of a given scope upon
one party for the benefit of the other.

There are many examples of cases in which the courts draw upon this so called
‘Incremental’ approach, rejecting the earlier two-stage test in Anns vs. Merton
Borough BC20. The three-stage was used in many cases as it formed a very
18
[2006] UKHL 33
19
[1990] 2 AC 605
20
[1978] AC 728

20
 important addition to the concept of negligence. A more recent example of the
application of considerations of what is just, fair and reasonable can be found in
Vowles vs. Evans and Another21. The Court of Appeals held that a rugby referee
owed a duty of care to players to take reasonable steps to enforce the rules of the
game because players depended on the enforcement of the rules. Rugby is a fast
moving game and it is fair, just and reasonable to expect players to rely on the
referee.
Attempts to reformulate the criteria by developing the three-stage test mask the
inevitable problem of patrolling the boundaries of liability and attempting to
adapt the law to changing circumstances.
Considerations of ‘what is fair, reasonable and just’ are in reality co-extensive
with policy arguments but such considerations should now only become relevant
after the questions of foresight and proximity have been settled. Indeed, it has
been suggested by Lord Bingham in Her Majesty’s Commissioners of Customs
and Excise vs. Barclay’s Bank plc. 22 that the incremental test is of little value
since it simply has the effect of indicating whether there has been an assumption
of duty, or whether a duty should be imposed by the court.

Concepts Now Used To Determine The Existence Of a Duty:

 Foresight
 Reliance
 Assumption of responsibility
 Proximity
 Just and reasonable

 Foresight: Whether the defendant owes a duty to the plaintiff or not depends on
reasonable foreseeability of the injury to the plaintiff. If at the time of the act or
omission the defendant could reasonably foresee injury to the plaintiff, he owes a duty
to prevent that injury and failure to do that makes him liable. In Rural Transport
Service vs. Bezlum Bibi23 the conductor of an over-loaded bus invited passengers to
travel on the roof of the bus. On the way the bus swerved on the right side to overtake
a cart. One of the passengers on the roof of the bus was struck by an overhanging
branch of a tree. He fell down and received multiple injuries on the head, chest etc.
and as a consequence thereof he died. In action by Bezlum Bibi, the mother of the
deceased, it was held that there was negligence on part of both the driver and the
conductor of the bus and the defendant was liable for the same. In this case, it was
21
[2003] EWCA Civ. 318
22
[2006] UKHL 28, paragraph 7
23
AIR 1980 Cal 165

21
 observed that “that inviting passengers to travel precariously on the top of an
overcrowded bus is itself a rash and negligent act and that apart when
passengers were being made to travel on the travel a greater amount of care and
caution on the part of the driver was called for so that his leaving the metallic
track by swearing on the right so close to tree with over-hanging branch for
overtaking a cart while in speed is also a rash and negligent act”.
 Reliance: This term first became prominent in legal usage when it was decided that
one who had relied to his detriment upon a statement made to him by another could
recover in negligence. Its use ensured that a liability far careless statement was more
limited than unrestricted adoption of the foreseeability test would have produced. The
term clearly has significance in cases in which the parties are very close to a
contractual situation. It has also been used in a looser, more general, sense in cases in
which one party could be said to be relying on another to act in a lawful manner.
 Assumption of responsibility: The notion of “assumption of responsibility” has
proven to be a valuable concept, particularly in those situations in which insistence
upon “reliance” as a requirement would have resulted in liability being narrower in
scope than seemed to be desirable. In White vs. Jones 24:

The facts of White v Jones concerned a claim in negligence against a testator's

solicitors by intended beneficiaries, the testator's daughters, for the solicitors'
failure to draw up a will to be executed by the testator bequeathing gifts of money
to the daughters. The court held that the solicitors were liable in tort for the
economic loss suffered by the intended beneficiaries because:
 The assumption of responsibility by a solicitor towards their client should
be extended in law to an intended beneficiary who was reasonably
foreseeably deprived of their intended legacy as a result of the solicitor's
negligence in circumstances in which there was no confidential or fiduciary
relationship and neither the testator nor their estate had a remedy against
the solicitor, since otherwise an injustice would occur because of a lacuna
in the law...
 Adopting the incremental approach by analogy with established categories
of relationships giving rise to a duty of care, the principle of assumption of
responsibility should be extended to a solicitor who accepted instructions to
draw up a will so that he was held to be in a special relationship with those
intended to benefit under it, in consequence of which he owed a duty to the
intended beneficiary to act with due expedition and care in relating to
carrying out those instructions.
Lord Goff felt that the broad principle of assumption of responsibility did not
apply to the testator's solicitor and an intended beneficiary, although it could apply
to the solicitor and the testator. His reasoning was that in the absence of special
24
[1995] 1 All ER 691

22
 circumstances, there will have been no reliance by the intended beneficiary on the
exercise by the solicitor of due care and skill; the intended beneficiary may not
even have been aware that the solicitor was engaged on such a task or that his
position might be affected.
Some commentators believe that Lord Goff s position in White v Jones is more
conservative than the views he expressed in Henderson and Others v Merritt
Syndicates Ltd and Others25. In any event Lord Goff appears in White v Jones to be
deciding the case on its own particular facts, and retreating from the broad
principle stated in Henderson.
Similarly Lord Browne-Wilkinson was also seen to 'draw some lines in the sand'.
He stated:
‘The law of England does not impose any general duty of care to avoid
negligent mis-statements or to avoid causing pure economic loss even if
economic damage to the plaintiff was foreseeable. However, such a duty of
care will arise if there is a special relationship between the parties. Although
the categories of cases in which such a special relationship can be held to exist
are not closed, as yet only two categories have been identified, viz (1) where
there is a fiduciary relationship and (2) where the defendant has voluntarily
answered a question or tenders skilled advice or services in circumstances
where he knows or ought to know that an identified plaintiff will rely on his
answers or advice. In both these categories the special relationship is created
by the defendant voluntarily assuming to act in the matter by involving
himself in the plaintiffs affairs or by choosing to speak ... such relationship
can arise even though the defendant has acted in the plaintiffs affairs
pursuant to a contract with a third party.’
Lord Browne-Wilkinson did not consider that there was a special relationship
within the definition of the two categories; however to avoid the situation of there
being no remedy in law when justice demanded there be one - the 'legal black hole'
mentioned in the GUS Property Management Ltd v Littlewoods Mail Order Stores
Ltd - he was content to establish an incremental extension to the categories of
special relationship to include the facts of White v Jones.
Lord Mustill delivered a powerful dissenting judgment. He posed the following
question:
'If A promises B to perform a service for B which B intends, and A knows,
will confer a benefit on C if it is performed, does A owe to C in tort a duty to
perform that service?'
To answer this question, Lord Mustill, like Lord Goff in Henderson, felt it
necessary to determine the principle underlying the decision in Hedley Byrne. He
detected four themes in the speeches of their Lordships in Hedley Byrne:
mutuality, special relationship, reliance and undertaking of responsibility. He
concluded that, in essence, Hedley Byrne was concerned with the undertaking of
25
(1990) 1 All ER 568

23
 legal responsibility for careful and diligent performance in the context of a mutual
relationship. This was to be contrasted with the principle derived from Donoghue v
Stevenson where the relationship was imposed externally from the position in
which they found themselves. In Hedley Byrne the 'liability arose internally from
the relationship in which the parties had together chosen to place themselves', i.e.
there was mutuality. Lord Mustill concluded, in answer to the question he had
posed, 'that to hold that a duty existed, even prima facie, in such a situation, would
be to go far beyond anything so far contemplated by the law of negligence'.

 Proximity: This term apparently invented by Lord Esher, was used by Lord Atkin
himself to describe the nature of the neighbour principle and has since been frequently
adopted. On the one hand it is clear that geographical proximity between the parties is
not itself sufficient to establish liability; although it may be an important factor. On
the other hand it is also clear that the absence of proximity in time or space will not
prevent the establishment of liability: the manufacturer of poisonous tinned food is
liable although his product has been shipped to the other side of the world and
consumed months later. Proximity is therefore a convenient expression “so long as it
is realized that it is no more than a label which embraces not a definable concept but
merely a description of circumstances from which pragmatically, the courts conclude
that a duty of care exists.”

 Just and Reasonable: Lord Keith in Peabody Donation Fund vs. Parkinson26 said
that in determining the existence of a duty of acre it was “material to take into
account whether it is just and reasonable” that one should be imposed. So far this
potentially wide-ranging concept has been used mainly to deny liability in
circumstances in which another defendant, or the plaintiff himself, is regarded as the
more appropriate bearer of the relevant loss, or where alternative remedies exist with
which a negligence action could undesirably be in conflict. Although the conflict in
which the concept was originally formulated in the Peabody case involved rejection of
a claim for pure economic loss, the House of Lords has since asserted in Marc Rich
and Co. vs. Bishop Rock Marine 27that “considerations of fairness, justice and
reasonableness are relevant to all cases whatever the nature of the harm
sustained by the plaintiff.”

Two Stage Test

26
 [1985] AC 210, [1984] 3 WLR 953, [1983] UKHL 5
27
Gazette 06-Sep-95, Independent 18-Aug-95, Times 07-Jul-95, [1995] 3 All ER 307, [1995] UKHL 4, [1996] 1 AC
211, [1995] CLC 934, [1995] 2 LLR 299, [1996] ECC 120, [1995] 3 WLR 227, [1995] 2 Lloyd’s Rep 299

24
In Anns vs. Merton Borough Council28, Lord Wilberforce made a statement which
established the famous two - stage test which was to be cited and relied upon in many of the
most important cases. His words were:

“Through the trilogy of cases, Donoghue vs. Stevenson, Hedley Byrne vs. Heller 29 and
Home office vs. Dorset Yacht Company Ltd., the position has now been reached that in
order to establish that a duty of care arises in a particular situation, it is not necessary
to bring the facts of that situation within those of previous situations when a duty of
care has been held to exist. Rather the question has to be approached in two stages.
First on has to ask whether, as between the alleged wrongdoer and the person who has
suffered damage, there is a sufficient relationship of proximity or neighborhood such
that, in the reasonable contemplation of the former, carelessness on his part may be
likely to cause damage to the latter in which case a prima facie duty of care arises.
Secondly, if the first question is answered affirmatively, it is necessary to consider
whether there are any considerations which ought to negative or to reduce or limit the
scope on the duty or class of persons to whom it is owed, or the damages to which a
breach of it may give rise.”
This Statement had a liberating effect on the law. Stage one was the simple application of the
neighbour test, based on proximity, treating the Donoghue vs. Stevenson principle as a
principle of general application. Stage two was the crucial policy stage at which the court
could legitimately discuss any reason of public, social, economic or other policy reasons for
denying a remedy.

Criticism of Two-Stage Test and Evolution of Three Stage Tests

In a number of oft-quoted statements criticizing the two-stage test, various attempts were
made to halt the expansion in the law which it had made possible. While it is clear that Lord
Wilberforce’s approach should not have been treated as if it were a statutory definition, it did
provide a useful and honest statement of the reality of the progress of the law. The wisdom of
the more liberal approach was doubted by Lord Keith in Governors of the Peabody Donation
Fund vs. Sir Lindsay Parkinson and Co. Ltd. (1985) in which he said:

“A relationship of proximity in Lord’s Atkin’s sense must exist before any duty of care
can arise but the scope of the duty must depend on all the circumstances of the case…
In determining whether or not a duty to take care of particular scope was incumbent
upon a defendant it is material to take into account consideration of whether it is just
and reasonable that it should be so.”

28
[1978] A.C. 728
29
[1964] AC 465

25
It appears from a number of decisions in the 1980’s that the test for the existence of a duty of
care is now approached in three stages. The approach recommended in Caparo Industries vs.
Dickman (1990) and other cases is to deal with the question of duty of care in three stages.
The first is to consider whether the consequences of the defendant’s act were reasonable
foreseeable; the second is to ask whether there is a relationship of proximity between the
parties; and third is to consider whether in all circumstances it would be fair, just and
reasonable that the law should impose a duty of a given scope upon one party for the benefit
of the other.

Physical harm and economic loss

Historically, a distinction was drawn by the law between the existence of a duty to prevent
physical harm and a duty not to expose someone to adverse economic consequences even
though, as the leading case. But as the law of negligence developed to allow claims for
purely economic loss to be pursued in each case, and it was necessary for the courts to
reconsider the limits of and preconditions for such liability, of one of the key factors has been
the assumption of responsibility by A towards B and B’s reliance upon A to conduct himself
carefully. The history of the duty in relation to purely economic loss can conveniently be
traced from cases such as Hedley Byrne v Heller 30to the very much more recent case (and,
to some, the locus classicus for the true test) of Caparo Industries v Dickman.
Although Caparo itself was a case about economic loss, the principles for the existence of a
duty of care in all tort actions are clearly expressed within it and are the foundation for any
analysis in the case of both economic and physical damage. The validity of this parallel was
confirmed in Mitchell v Glasgow31, where it was argued unsuccessfully that, as Caparo was
concerned only with economic loss, it had no or little application to personal injury claims. In
the words of Lord Hope:
“…the origins of the fair, just and reasonable test show that its utility is not confined to that
category”
In Caparo itself Lord Bridge explained the key preconditions thus, having analyzed the
previous cases:
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients
in any situation giving rise to a duty of care are that there should exist between the
party owing the duty and the party to whom it is owed a relationship characterized by
the law as one of ‘proximity’ or ‘neighborhood’ and that the situation should be one in
which the court considers it fair, just and reasonable that the law should impose a duty
of a given scope on the one party for the benefit of the other.”

DUTY OF CARE IN DIFFERENT SITUATIONS

30
(1964) AC 465 : (1964) 3 WLR 101
31
(2009) UKHL 11

26
Public Bodies and the decision in Mitchell v Glasgow:
There are, of course, countless authorities in which the duty of care of a public authority has
been debated and established or rejected. It is well beyond the scope of this article to discuss
all of them here in any detail.
Highways cases are one such category where questions have arisen as to the scope, existence
and nature of any statutory or common law duty that may be owed. In Stovin v Wise32, a
majority of the House of Lords held that the highway authority owed no duty to the member
of the public who suffered injury at cross-roads where visibility was restricted. The failure to
exercise its power to require the removal of the obstruction (which was on someone else’s
land) was an omission only and that was not actionable. The Highway Authority had done
nothing positive: it was a case of “simple omission and therefore excluded as a matter of
policy from the arena of tort liability”.
The situation may be different where a public authority takes an active step such as where it
issues a license without which the activity in question would be impermissible – that is, does
Something positive. But, again, no single test will apply to very situation. So one can find any
number of cases in which the courts have considered the possible duties of care that might be
owed by local authorities and their building inspectors, the emergency services, an NHS
hospital, the Secretary of State for Work and Pensions, the Police, prosecuting authorities and
a body like the National Environment Research Council. There are many other examples in
an area particularly rich with authority. Much of it shows the considerable influence played
by considerations of public policy in applying the tests and principles discussed above.
The most recent authoritative analysis in this context – and one to which I have referred
already – is the decision in Mitchell. What was in issue was whether a local authority was
under a duty to warn one of their tenants that he was at risk of attack by a neighbour. In
discussions as to whether, on the facts of this case, such a duty should be imposed, the
concept of “assumption of responsibility” was again very much to the fore. At paragraph 29
of his Opinion Lord Hope said this
“….I would also hold, as a general rule, that a duty to warn44 another person that he is
at risk of loss, injury or damage as a result of the criminal act of a third party will arise
only where a person who is said to be under that duty has by his words or conduct
assumed responsibility for the safety of the person who is at risk”
At paragraph 40, Lord Scott put it thus
“The requisite additional feature that transforms what would otherwise be a mere
omission, a breach at most of a moral obligation, into a breach of a legal duty to take
reasonable steps to safeguard, or to try to safeguard, the person in question from harm
or injury may take a variety of forms. Sometimes the additional feature may be found
in the manner in which the victim came to be at risk of harm or injury. If a defendant
has played some causative part in the train of events that led to the risk of injury, a duty
32
(1996) 3 WLR 389

27
to take reasonable steps to avert or lessen the risk may arise.” Sometimes the additional
feature may be found in the relationship between the victim and the defendant: (e.g.
employee/employer or child/parent) or in the relationship between the defendant and the
place where the risk arises (e.g. a fire on the defendant’s land). Sometimes the additional
feature may be found in the assumption of responsibility by the defendant for the person at
risk of injury. In each case where particular circumstances are relied on as constituting the
requisite additional feature….the question for the court will be whether the circumstances
were indeed sufficient for that purpose or whether the case remains one of mere omission”.
And at paragraph 82, dealing with familiar authorities including Home Office v Dorset
Yacht, Lord Rodger put the test in similar terms:
“…Similarly, if A specifically creates a risk of injury…he may be liable for the resulting
damage….Similarly, A may be liable if he assumes specific responsibility for B’s safety
but carelessly then fails to protect B..”

Regulators undertaking responsibility:

Those who exercise some form of regulatory control in the context of lying down and
enforcing rules or guidelines designed to control the activities of those under their authority
can more readily be held to owe a duty of care than those who merely fail to exercise a
power. The key reasons for this distinction are those which we have already identified.
Considerations of foreseeability and proximity (which may well be demonstrated by the
control that the regulator exercises over the matter in question) and reasonableness/policy
will again be the key considerations.
As we have seen already, assumption of responsibility will be one important consideration
helping to illuminate the particular principle in issue. That process will involve identifying
the actual responsibility that has been assumed by the regulator and whether the person
affected is likely to have relied on that regulator to apply the regulatory regime carefully. But
in all these cases, whether or not a duty of care can be made out will again depend very much
on the facts.
In some situations, the answer seems clear – at least with hindsight. For example, Michael
Watson succeeded in his action against the British Boxing Board of Control because the BB
of C entirely controlled the provision of medical services at the fight and Mr. Watson relied
on that assumption of responsibility by the Board and expected them to do so to an
appropriate standard. It was the same, in effect, in another case so that the Claimant who was
injured in an aircraft accident succeeded in an action against one of the inspectors of the
Popular Flying Association who had certified that the aircraft was airworthy.
In the Parrett case, the Court of Appeal reviewed many of the cases showing the development
of the common law duty of care, some of which have also appeared in this paper. Buxton LJ
rejected the argument that the Marc Rich vs. Bishop Rock Marine Co. 33was of much help in
personal injury cases. Instead, he found that the necessary ingredients for establishing a duty
of care all existed which, with hindsight, seems hardly surprising: after all, a claimant might
33
(1995) 3 All ER 307(HL)

28
be expected to know that all aircraft require some form of airworthiness certificates and to
rely upon the person providing such certification to have done his or her job properly.
Similarly, in Watson, the boxer was entitled to expect that the BB of C, which regulated the
contest and provided the medical facilities at ringside, would provide facilities that were of an
appropriate standard. After all, the Board required that the bout be conducted according to its
rules and, as Lord Phillips MR pointed out, those engaged in the bout relied on the Board to
provide appropriate medical supervision. So, at paragraph 43 of his judgment, the Master of
the Rolls identified the “special features” of the case in these words
“The principles alleged to give rise to a duty of care in this case are those of assumption
of responsibility and reliance”
He went on to explain why those elements were present and decisive in that particular case.
The same general principle also applies to activities such as motor sports – as can be seen in a
case where Davis J held that the Goodwood Road Racing Company and the Sports National
Licensing Body both owed a duty of care to the competitors: the former was as regards all
aspects of track safety, in which respect it was also entitled to rely on outside advice: the
latter was owed in respect of the advice given as to necessary safety features and
arrangements for the course. Here too the licensing body’s assumption of responsibility was
the key to the existence of a duty of care. Competitors will have expected that organizers
would take advice and run a proper event. Only on that assumption will they have entered
and competed.
There are other cases in which it has been held at least arguable that the regulator owed some
such duty. In HSE v Thames Trains34, for example, the HSE exercised a regulatory,
supervisory and licensing role. But although it was only an organization which monitored the
safety standards of others (particularly, Rail track) and it was suggested that there might not
be a relationship of sufficient proximity to the travelling public to justify the imposition of
such a duty, the Judge held that the contrary was arguable.
Equally, some cases against regulators or quasi-regulators have not succeeded. One example
would be Yuen Kun Yeu v AG of Hong Kong.
In summary, in relation to this category, I suggest that the key considerations of proximity
and policy are usually defined by the ingredients of assumption of responsibility/control and,
of course, reliance by the victim: but it must be emphasized that no single test can be
articulated to provide the answer in all differing factual situations. We can only hope to
identify the relevant components for what is, so often, a pragmatic decision.

Sporting Activities
In the case of accidents in a sporting context the debate is more often about the standard of
care as opposed to whether there was any kind of duty in the first place.

34
(2003) ECWA Civ. 720

29
It may seem trite to state that a duty of care will be owed by the organizer both to competitors
and spectators and by the competitors to each other. But the issue has not always been that
simple.
Two of the rugby cases, Vowles and Smoldon illustrate the issues well. The only real
arguments against the imposition of a duty of care on a referee whose job it is to apply rules
that exist not just for the proper regulation of the game but also in the interests of players’
safety are arguments of policy of policy. In the Caparo sense, then, the issue is not
foreseeability or proximity but of fairness and reasonableness. And it is clear that the
assumption of responsibility (by the referee) and reliance (by the player) upon the referee to
discharge that duty were key to the Claimants’ success in their appeals.
Perhaps, with hindsight, the duty of care imposed on the referee by the Court of Appeal in
Vowles v Evans 35may seem less controversial now than it may have done to some at the
time. In reality – as had been the defendants’ approach in Smolden v Whitworth 36- it may
seem to us now that the defendant’s real argument should always have been about standard as
opposed to duty of care. And that standard will not be unduly onerous, as was clear from the
Court of Appeal’s decision in that earlier case. But although the defendants in Smoldon had
conceded that they owed a (limited) duty of care, any such duty was denied in Vowles, the
defendants’ argument being founded largely on policy. The argument was firmly rejected.
Lord Phillips M.R put it this way:

“Rugby football is an inherently dangerous sport. Some of the rules are designed to
minimize the inherent dangers. Players are dependent for their safety on the due
enforcement of the rules. The role of the referee is to enforce the rules. Where a referee
undertakes to perform that role, it seems to us manifestly fair, just and reasonable that
the players should be entitled to rely on the referee to exercise reasonable care in so
doing….”
As I say, that is exactly the language of a duty which depends on assumption of responsibility
and reliance.
The duties that attach to participants in sports are usually less controversial. There can be no
question but that the person actively participating may well do something that creates an
immediate risk of very serious injury. In such cases, the debate is usually not so much about
whether the one owes any duty of care to the other but, rather, about what is the appropriate
standard of care that is apt in the sport in context.
A good example of the Courts’ approach on the issue of standard in the sporting context is
Caldwell v McGuire37. In that case, it was accepted that each jockey owed a duty of care to
the other, but what was in issue was the standard of care in the particular circumstances of a
sport in context. The appropriate standard of care was also the real issue in two of the
football cases – Condon v Basi 38and Watson v Gray 39where the Court of Appeal held that
35
(2003) ECWA Civ. 318
36
(1997) PIQR P133
37
(2001) ECWA Civ. 1054
38
(1985) 1 WLR 866
39
(1900) 16 TLR 308

30
the duty of care between players in competitive sports was always a duty to take reasonable
care in the particular circumstances and that the standard of care was an objective one, albeit
one varying according to the particular circumstances of the case which would include the
degree of skill to be expected by one competitor to be shown by another.

Organizers
It cannot be doubted that those who actively undertake the organization of events are likely to
be held to owe a legal duty of care – and this has frequently been recognized in the sporting
and social context alike, especially where the event is inherently dangerous.
It is of fundamental importance to distinguish between those who organize events and
undertake some sort of supervision and those who are simply the occupiers of the premises
and purport to offer no supervision or instruction and cannot reasonably be taken to be doing
otherwise. Perry v Harris 40- the bouncy castle case – has to be seen in that context.
Given that a parent had undertaken to supervise those playing on the bouncy castle because
of the obvious dangers, it may seem unsurprising that the question of whether a duty of care
was owed was not in issue. Instead, the Court’s focus was on the standard of care. Decisions
on standard are always extremely fact sensitive and so Perry need not be taken as authority
for anything beyond the uncontroversial proposition than that the standard of care depends,
amongst other things, on the degree and extent of the danger in respect of which the duty is
owed.
It may be that policy considerations and a judicial distaste for the perceived compensation
culture played a part in determining the outcome of that case. Nevertheless, the ratio of the
case and the decisive factor (at least according to the Court of Appeal’s finding) as regards
the standard of care, is no more controversial than that the standard of care depends to a
considerable extent on the nature of the activity in question and, in particular, on the severity
of injury that might ensue: since it was not reasonably foreseeable that any injury on the
bouncy castle was likely to be serious, the standard of care required did not mean that
children playing on the bouncy castle needed to be kept under constant surveillance.

Responsibility for contractors

Another example of the duty which attaches to the organizer of events arises where the
occupier engages independent contractors. He will have a duty to take steps to ensure that
they are competent which, in the case of Gwilliam v West Herts Hospital NHS Trust 41might,
in certain circumstances, extend to ascertaining whether the independent contractor had
satisfactory insurance in position (although, as Neuberger LJ observed in Naylor v Payling 42,
Gwilliam is not an entirely straightforward case). But whatever may be the standard of care in

40
(Bailii, [2008] EWHC 990 (QB))
41
 [2002] EWCA Civ. 1041
42
[2004] EWCA Civ. 560

31
the circumstances, there can be no question but that a duty is owed, probably both at common
law and under the Occupiers Liability Act 1957.

Those who provide a facility and are also occupiers

It is possible to identify at least three different (though sometimes overlapping) categories of
duty.
First, there is the duty that attaches to all occupiers in respect of the state of the premises
which, as is apparent from the terms of the duty under the 1957 Act, has to be judged in the
context of the purposes for which the visitor is there. Second, there are premises which
cannot be regarded as unsafe but where there may be hidden dangers. Third, there are those
premises on which activities are permitted (without being organized as such by the occupier)
and which may themselves give rise to a danger
Let us first consider the duty that attaches to the occupier of a house. It must be reasonably
safe for the visitor to use in the light of “the purposes for which he is invited or permitted by
the occupier to be there”. As many recent authorities remind us, both under the 1957 and
1984 Acts, that duty attaches to the “state of the premises” and does not impose any free-
standing supervisory duty in relation to what goes on upon them.
It should, however, be borne in mind that as the occupier goes around his house, he may well
owe a duty to his visitors quite apart from the duty as regards the state of the premises under
the 1957 and the 1984 Act. If he were to carelessly shut the door upon somebody else’s
finger or to lead his unwitting guests, persuaded to embark on a late night ramble, to fall into
a pond the presence of which he had not previously mentioned, then he may be taken to have
owed a duty of care and to have failed to discharge it. But in those cases the occupier owes a
duty because he has done something positive (or arguably negative) so that the three Caparo
conditions are easily satisfied. Otherwise, an accident sustained by someone on his land,
whether visitor or trespasser, will only be actionable under the 1957 or 1984 Act if it results
in something wrong with the premises.
If it were apparent before, all of this was made crystal clear by the Court of Appeal in
Donoghue v Folkestone Properties43 and by the House of Lords in Tomlinson v Congleton
Borough Council. 44
The starting point here is the wording of Section 2(2) of the 1957 Act which provides that the
“common duty of care is a duty to take such care as is in all the circumstances of the
case is reasonable to see that the visitor will be reasonably safe in using the premises for
the purpose for which he is invited or permitted by the occupier to be there”. But as
Lord Hoffmann explained in Tomlinson, the duties under the 1957 and 1984 Acts arise
only where it is the “state of the premises” which has given rise to the risk of injury.
That was exactly the approach of Lord Phillips MR in Donoghue. There are, as he observed
at paragraph 35 of his judgment,
“….some features of land that are not inherently dangerous which may tempt a person
on the land to indulge in an activity which carries a risk of injury. Such activities
43
 (2003) (3 All ER 1101; 2 WLR 1138)
44
 [2003] UKHL 47

32
include cliff-climbing, mountaineering, ski-ing by way of example. It does not seem to
me that a person carrying on such an activity can ascribe to the ‘state of the premises’
an injury sustained as a result of a mishap in the course of carrying on the activity –
provided of course that the mishap is not caused by an unusual or latent feature of the
landscape”
Concentration on the duty arising because of the state of the premises, as opposed to having
some other basis, explains the Court of Appeal’s approach in Keown v Coventry Healthcare
45
and at the very least casts some doubt on the decision of Morison J in Young v Kent County
Council. 46
In the Keown case, the 11 year old Claimant was playing on a fire escape in the
accommodation block of a hospital and fell. His claim failed because that fall had nothing to
do with the state of the premises and so the 1984 Act duty did not bite, notwithstanding that
the occupier knew that children did play in the grounds. In Young, a similar situation arose
but Morison J at first instance found for the 12 year old Claimant who had climbed onto a
roof and jumped on a skylight. It was brittle and he fell through. As Longmore LJ explained
in Keown, the decision in Young can only be justified on the basis that the Judge found that
the roof with a brittle skylight was inherently dangerous and so made the premises unsafe. As
regards occupiers, Lord Hoffmann made it clear in Tomlinson that it would be:
“Extremely rare for an occupier of land to be under a duty to prevent people from
taking risks which are inherent in the activities they freely choose to undertake upon
the land. If people want to climb mountains, go hang gliding or swim or dive in ponds
or a lake, which is their affair.”
The second category arises where there is a hidden danger. There can be no doubt that the
occupier has a duty to warn of such a danger, whether as a consequence of a common law
obligation or because, in relation to an Occupiers Liability Act duty, the state of such
premises could not otherwise be regarded as safe. In Poppleton, for example, it was argued
that the very depth of the safety mat, well in excess of industry standards, constituted a
“hidden danger” in the sense that someone inclined to jump down or fall from several feet
above it might not have appreciated that he or she might still suffer injury – especially if they
fell awkwardly as Mr. Poppleton did. Where there is some genuine hidden danger, it will
usually suffice that the danger is properly marked or the visitor clearly advised as to its
presence.
The Court of Appeal firmly rejected the idea that there might be some duty to warn of an
obvious or self-evident danger but that is not to say that the existence of a real hidden danger
might not give rise to such a duty. Even if it could be argued that it did not relate to the state
of the premises or the “activity duty” under section 2(2) of the 1957 Act80, such a duty
would probably arise anyway from the implicit assumption that if one is permitted to go onto
someone’s land one may reasonably be expected to be warned of a risk of injury that one
might not ordinarily have expected to see for oneself. In that case, all three Caparo conditions
should sensibly be seen as satisfied.

45
[2006] All ER (D) 27
46
[2005] All ER (D) 217 (Mar)

33
Emphasis on free will
In both Tomlinson and in Evans v Kosmar47, the House of Lords and Court of Appeal have
been at pains to point out that it is a fundamental principle that people should take
responsibility for their own selves and that the imposition of a duty of care on others may
constitute an erosion of that important principle. This is not a novel concept and may be seen
as the obverse of the notion of assumption of responsibility. Both these authorities enable us
to see how the common sense of that proposition is translated into jurisprudence.
For the purposes of this paper, it may suffice to begin with Ratcliff v McConnell 48in which a
student gained access to a swimming pool at night by climbing over a locked door before
suffering severe injuries when diving into the shallow end. The Court of Appeal held that he
was owed no duty under the Occupiers Liability Act 1984 or otherwise: the claimant was
aware of the risk he took and voluntarily accepted it.
This same concept of personal responsibility is also an important feature of the Court of
Appeal’s rejection of the idea that a duty was owed to Mr. Donoghue by the Folkestone
Harbor authorities and of the approach of the House of Lords in Tomlinson.
At paragraph 26 of his opinion, Lord Hoffmann observed that “….the only risk arose out of
what he chose to do and not out of the state of the premises”. At paragraphs 44-50, he
returned to the importance of “free will” recognizing the importance of the proposition that
“people should accept responsibility for the risks they choose to run” in these terms

“I think it will be extremely rare for an occupier of land to be under a duty to prevent
people taking risks which are inherent in the activities that freely choose to undertake
upon the land”
Those same ‘free will’ arguments appear again as an important theme in Evans v Kosmar. At
paragraph 39 of his judgment, Richards LJ said
“…the core of the reasoning in Tomlinson, as in earlier cases such as Ratcliff v
McConnell, was that people should accept responsibility for the risks they choose to run
and that there should be no duty to protect them against obvious risks (subject to Lord
Hoffmann’s qualification as to cases where there is no genuine or informed choice or
there is some lack of capacity).”

SCOPE OF DUTY OF CARE

 
A. Unforeseeable Plaintiffs

47
 [2007] All ER (D) 330 (Oct)
48
 [1997] EWCA Civ. 2679

34
 B. Omissions and Commissions
C. No Liability when injury not foreseeable

A. Unforeseeable Plaintiffs: There is no liability for negligence unless there is in

the particular case a legal duty to take care, and this duty must be one owed to the
plaintiff himself and not merely to others. This duty of carefulness is not
universal; it does not extend to all occasions, and all modes of activity. So Lord
Esher once uttered the characteristic remark that “If a man is driving on
Salisbury plain and no other person is near him, he is at liberty to drive fast
and recklessly as he pleases.” So man may be under a duty of care towards one
person and yet in the same matter and on the same occasion under no duty of care
towards another.

B. Omissions and Commissions: In the absence of some existing duty the general
principle is that there is no liability for a mere mission to act. There is a basic
distinction between causing something and failing to prevent it happening. There
may be liability if the defendant is in the position of an employer or inviter, or the
risk has resulted from the use of some instrumentality under his control, or from
an obvious danger such as fire on land occupied by him, or he has voluntarily
intervened to render help. Thus, an “assumption of responsibility” by a
professional person “may give rise to liability in respect of negligent omissions as
much as negligent acts of commission.

C. No liability when injury not foreseeable: In Cates vs. Mongini Bros. 49 the
plaintiff, a lady visitor to a restaurant, was injured by the falling of a ceiling fan on
her. The reason for the falling of the fan was a latent defect of the suspension rod
of the fan. The defect could not have been discovered by a reasonable man. In an
action against the defendants, who were running the restaurants, it was held that
since the harm was not foreseeable, they were not negligent and, therefore, were
not liable for the loss to the lady plaintiff.

Standard of Care and Reasonable Man:

Different degrees of negligence not recognized:

49
(1971) 19 Bom LR 778

35
The law of torts does not recognize different standards of care or different degrees of
negligence in different classes of case. The sole standard is the care that would be shown in
the circumstances by a reasonably careful person, and the sole form of negligence is a failure
to use this amount of care. It is true; indeed, that this amount will be different in different
cases, for a reasonable person will not show the same anxious care handling an umbrella as
when loading a gun.

Reasonable Man:
The reasonable man has been described as the “prudent person”, a person of “ordinary
prudence”, an “ordinarily prudent” person, a “reasonable and prudent person”, a “reasonably
careful person, and an old favorite, “the man of the Clapham omnibus.”
An extensive summary of the character of the reasonable man is found in Arland vs. Taylor
50
“[The reasonable person is] a mythical creature of the law whose conduct is the
standard by which the Courts measure the conduct of all other persons and find it to be
proper or improper in particular circumstances as they may exist from time to time.”

STANDARD OF CARE AND CONCEPT OF RISK:

The advantage of the test of reasonable foresight is that it keeps the law in touch with the
needs of the ordinary person. The disadvantage is that in complex society ordinary people
may have insufficient knowledge or experience of the activity under consideration to entitle
them to set the appropriate standard of care. The result may be confused and contradictory to
expound the standard of duty of care required in any particular case more in terms of risk that
in terms of reasonable foreseeability. A risk is a chance of harm to others which the party
whose conduct has been called in question should have recognized. Hence, negligence is
conduct which falls below the standard established by the law for the protection of the others
against unreasonable risk of harm. (The risk or hazard in question must, as we have already
seen, be to a legally protected interest of the plaintiff.) There are three factors for
considerations. First, the magnitude of the risk to which the defendant exposes other persons
by his action; secondly the importance of the object to be attained by the dangerous form of
activity; and thirdly the burden of adequate precautions.

 The magnitude of the risk to which others are exposed.

 The Importance of the object to be attained.
 The Burden of adequate precautions.

50
(1995) OR 131 (CA)

36
  The magnitude of the risk to which others are exposed: The law in all cases exacts
a degree of care commensurate with the risk created. There are two factors in
determining the magnitude of a risk – the seriousness of the injury risked, and the
likelihood of the injury being in fact caused.
i. Gravity of the injury: In Paris vs. Stepney Borough Council 51 the
plaintiff, who had only one good eye, was blinded in the course of his
employment. He contended successfully that his employers, by omitting to
provide him with goggles, were in breach of their duty to take reasonable
care of his safety because, though it was not the general practice to provide
to provide goggles for that class of work they must have known that the
consequences of an accident to his good eye would be particularly
disastrous.
ii. Likelihood of injury: The general principle is that before negligence can
be established it must be shown not only that event was foreseeable but
also that there is a reasonable likelihood of injury. To base liability upon
foreseeability alone would be too severe, for, “foreseeability does not
include any idea of likelihood at all”. So “people must guard against
reasonable probabilities, but they are not bound to guard against
fantastic possibilities” But it is not always justifiable to neglect a risk of
small magnitude simply because it is small – the difficulty, expense and
advantages of eliminating the risk must also be considered, as well as the
general practice in such cases.

 The Importance of the object to be attained: The reasonableness of the

defendant’s conduct will also depend upon the proportion which the risk bears
to the object to be attained. To expose others to a risk of harm for a
disproportionate object is unreasonable, whereas an equal risk for a better
cause may be lawfully run without negligence. By running trains at the rate of
fifty miles an hour railways have caused many fatal accidents which could
quite easily have been avoided by running at ten miles an hour. But this
additional safety would be attained at too great a cost of public convenience,
and therefore, in neglecting this precaution, the companies does not fall below
the standard of reasonable care and are not guilty of negligence. Similarly
when it was suggested that a bank, which is under a duty to pay on demand a
cheque which is in proper form, owed a duty to its customer to investigate all
the endorsements, Lord Macnaghten said, “A banker so very careful to
avoid risk would soon have no risk to avoid”.

51
(1951) AC 367 : (1951) 1 TLR 25: 94 SJ 837 : (1951) 1 All ER 42

37
 The Burden of adequate precautions: The general principle is that the risk
has to be weighed against the measures necessary to eliminate it. So the
occupier of a small property on which a hazard arises which threatens a
neighbor with substantial interests should not have to do as much as one with
larger interests of his own at stake and greater resources to protect them. If the
risk is very remote, it is material to consider the degree of security which the
suggested measures would afford: if in such a case the suggested measures
are of an elaborate nature and would result only in a possibility that the
accident would have been prevented or its consequences mitigated, then the
defendant may be justified in doing nothing. It is also relevant to consider the
degree of risk (if any) which taking the precautionary measures may involve.
But the greater risk the less should be weight given to questions of the cost of
precautionary measures in time, trouble or money. If the risk to life or
property is really substantial, and no precautions would avail against it, it may
be the duty of the defendants to cease to carry on the particular activity in
question.

CASE LAWS
 Bolton vs. Stone
 Blake vs. Galloway
 Alcock v Chief Constable of South Yorkshire Police
 Chapman vs. Hearse

38
  Bolton vs. Stone  [1951] AC 850, [1951] 1 All ER
1078:

 Is a leading House of Lords case in the tort of negligence, establishing that a defendant is not

negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his
conduct. The plaintiff was hit by a cricket ball which had been hit out of the ground; the
defendants were members of the club committee.

Facts
On 9 August 1947, during a game of cricket against the Cheetham 2nd XI at Cheetham
Cricket Ground in Manchester, a batsman from the visiting team hit the ball for six. The ball

39
flew out of the ground, hitting the claimant, Miss Stone, who was standing outside her house
in Cheetham Hill Road, approximately 100 yards (91 m) from the batsman.

The club had been playing cricket at the ground since 1864, before the road was built in
1910. The ground was surrounded by a 12-foot (3.7 m) fence, but the ground sloped up so the
fence was 17 feet (5.2 m) above the level of the pitch where the ball passed, about 78 yards
(71 m) from the batsman. There was evidence that a ball had been hit that far out of the
ground only very rarely, about six times in the last 30 years, although people living closer to
the ground reported that balls were hit out of the ground a few times each season.

The claimant argued that the ball being hit so far even once was sufficient to give the club
warning that there was a risk of injuring a passer-by, fixing it with liability in negligence for
the plaintiff's injuries. The claimant also claimed under the principle in Ryland’s v Fletcher,
that the ball was a dangerous item that had "escaped" from the cricket ground, and in
nuisance.

Judgment

High Court
Oliver J. heard the case at first instance in the Manchester Michaelmas Assizes on 15 December
1948. He delivered a short judgment on 20 December 1948, dismissing each ground of the
claimant's case, holding that there was no evidence of any injury in the previous 38 years, so
there was no negligence; Ryland v Fletcher was not applicable; and a single act of hitting a
cricket ball onto a road was too isolated a happening to amount to a nuisance. [1]

Court of Appeal
The claimant's appeal was heard in the Court of Appeal on 13 October and 14 October 1949,
and judgment was delivered by on 2 November 1949. All three judges, Somervell,
Singleton and Jenkins LJJ, dismissed nuisance on the same grounds as Oliver J. Somervell LJ,
dissenting, held that the claimant had failed to establish that the defendants had not taken due
and reasonable care, so was not negligent either. However, the majority, Singleton and Jenkins
LJJ, held that an accident of this sort called for an explanation, and that the defendants were
aware of the potential risk. On that basis, applying the legal maxim of res ipsa loquitur, the
defendants were found negligent. [2]

The defendants appealed to the House of Lords.

40
House of Lords
The House of Lords heard argument on 5 March and 6 March 1951, delivering their judgment on
10 May 1951.[3]

The House of Lords (Lord Porter, Lord Normand, Lord Oaksey, Lord Reid and Lord Radcliffe)

unanimously found that there was no negligence, although most considered it a close call based
on whether the reasonable person would foresee this as anything more than an extremely
remote risk. Most of the Lords agreed that the key issue was that of making the key question one
of determining the fact of what the reasonable person would have in mind regarding assumption
of this risk. Facts may be determined by judges, but may also be determined by lesser mortals in
juries. This was not considered to be a point of law, which is the province of judges. In this case
the risk was considered (just) too remote for the reasonable person, in spite of the observation by
Lord Porter that hitting a ball out of the ground was an objective of the game, "and indeed, one
which the batsman would wish to bring about". The Lords believed there was policy implications
in terms of the message of what liability would have meant in creating restrictions in what we can
do in our everyday lives in an urbanized modern society.

In words of Lord Atkin in Donoghue v Stevenson, "You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be likely to injure your neighbour."
Whether the defendant had a duty to the claimant to take precautions to take into account the
foreseeability of the risk and the cost of measures to prevent the risk. The risk in this case may
have been foreseeable, but it was so highly improbable that a reasonable person could not have
anticipated the harm to the claimant and would not have taken any action to avoid it. In the words
of Lord Normand, "It is not the law that precautions must be taken against every peril that can be
foreseen by the timorous."

Issue: Is there a duty to prevent a risk that is reasonably foreseeable?

Holding and Rule: Yes. If an injury is the result of a reasonably foreseeable cause, the person
responsible is liable for damages because he has a duty to take reasonable measures to prevent it.
The court held that in this case balls had previously been hit out of the field and it was therefore
reasonable foreseeable that it could happen again.
Disposition: Affirmed – judgment for P.

References

1.  [1949] 1 All ER 237

2.  [1950] 1 KB 201, [1949] 2 All ER 851, 65 TLR 683, 48 LGR 107, 93 Sol Jo 710
 [1951] AC 850, [1951] 1 All ER 1078, [1951] 1 TLR 977, 50 LGR 32, 95 SJ 333

41
  Blake vs. Galloway  3 All ER
315 Court of Appeal

The claimant, a 15 year old boy, was out with four of his friends including the defendant. The
boys started throwing pieces of bark chippings and twigs at each other. The claimant did not
join in at first but then threw a piece of bark chipping at the defendant hitting him in the leg.
The defendant picked it up and threw it back at the claimant. The piece of bark struck the
claimant's eye resulting in serious injury. The claimant brought an action contending that the
injury was caused by the battery and or negligence of the defendant. The defendant
raised volenti non fit injuria. The trial judge rejected the defence of volenti but held that the
damages should be reduced by 50% under the Law Reform (Contributory Negligence) Act
1945. The defendant appealed contending that there was no breach of duty and that the judge
was wrong to reject the defence of volenti.

Held:

Appeal allowed. In the context of 'horseplay' there is a breach of the duty of care only where

42
the defendant's conduct amounts to recklessness or a very high degree of carelessness. The
defendant had consented to the risk of injury occurring within the conventions and
understanding of the game. 

Lord Justice Dyson:

"If the defendant in the present case had departed from the tacit understandings or
conventions of the play and, for example, had thrown a stone at the claimant, or
deliberately aimed the piece of bark at the claimant's head, then there might have been
a breach of the duty of care. But what happened here was, at its highest, "an error of
judgment or lapse of skill" (to quote from Diplock LJ), and that is not sufficient to
amount to a failure to take reasonable care in the circumstances of horseplay such as
that in which these youths were engaged. In my view, the defendant's conduct came
nowhere near recklessness or a very high degree of carelessness."
 
The game was played on the basis that the objects were thrown at no particular part of the
body. It follows that an object thrown in the general direction of a participant, without
negligence and without intent to cause injury, but which happened to hit him in the face, was
being thrown in accordance with the understandings and conventions of the game, and in a
manner to which the participants had consented.

 Alcock v Chief Constable of South

Yorkshire Police

 [1991] UKHL 5, [1992] 1 AC 310

Facts
The claims were brought by Alcock and several other claimants after the Hillsborough disaster in
1989, where 96 Liverpool fans died in a massive crush during the FA Cup Semi Final
at Hillsborough Stadium in Sheffield. According to the Taylor Report (as well as the later report of
the Hillsborough Independent Panel), the accident was caused by the police negligently allowing
too many supporters to crowd in one part of the stadium. Many alleged to have seen their friends
and relatives die in the crush and suffered psychiatric harm or nervous shock after the incident.

43
Judgment
The plaintiffs in this case were mostly secondary victims, i.e. they were not "directly affected" as
opposed to the primary victims who were either injured or were in danger of immediate injury.
The Judicial Committee of the House of Lords, consisting of Lord Keith of Kinkel, Lord
Ackner, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle, and Lord Lowry has established a
number of "control mechanisms" or conditions that had to be fulfilled in order for a duty of care to
be found in such cases.

 The claimant who is a "secondary victim" must perceive a "shocking event" with his own
unaided senses, as an eye-witness to the event, or hearing the event in person, or viewing
its "immediate aftermath". This requires close physical proximity to the event, and would
usually exclude events witnessed by television or informed of by a third party, as was the
case with some of the plaintiffs in Alcock.
 The shock must be a "sudden" and not a "gradual" assault on the claimant's nervous
system. So a claimant who develops a depression from living with a relative debilitated by
the accident will not be able to recover damages.
 If the nervous shock is caused by witnessing the death or injury of another person the
claimant must show a "sufficiently proximate" relationship to that person, usually described
as a "close tie of love and affection". Such ties are presumed to exist only between parents
and children, as well as spouses and fiancés. In other relations, including siblings, ties of
love and affection must be proved.
 It must be reasonably foreseeable that a person of "normal fortitude" in the claimant’s
position would suffer psychiatric damage. The closer the tie between the claimant and the
victim, the more likely it is that he would succeed in this element. However, once it is shown
that some psychiatric damage was foreseeable, it does not matter that the claimant was
particularly susceptible to psychiatric illness - the defendant must "take his victim as he finds
him" and pay for all the consequences of nervous shock

Significance
The impact of this on the area of law once described as a '"patchwork quilt of distinctions which
are quite difficult to justify"[3] is significant because the decision made by the Law Lords was
heavily influenced by the greater social concern of allowing a flood of claims with which the
judicial system would not be able to cope (the "floodgates argument"). The decision has been
criticized as being excessively harsh on the claimants, as well as not fully corresponding with
medical knowledge regarding psychiatric illness brought about by nervous shock. [4] Although
reform has been widely advocated and a legislative proposal to mitigate some of the effects
of Alcock was drafted by the Parliamentary Law Commission in 1998, the decision
in Alcock represents the state of the law in the area of liability for psychiatric harm as it currently
stands.

44
 
 

 CHAPMAN V. HEARSE (1961) 106 CLR 112

High Court of Australia – 8 August 1961

FACTS: On a dark and wet night Chapman drove his motor vehicle into the back of Emery’s car.
Chapman was left lying on the road after the accident. Dr. Cherry came upon the scene and left his
motor vehicle and began to assist Chapman. While Cherry was treating Chapman a motor vehicle
driven by Hearse hit Cherry and killed him. Cherry’s estate sued Hearse. Hearse denied liability and
also claimed that Cherry was liable for contributory negligence. Hearse also joined Chapman as a
third party on the grounds that he had contributed to the accident. The Court found that Hearse had
been negligent but that Chapman had also been negligent and was therefore liable to contribute one
quarter of the damages payable by Hearse to Cherry’s estate. Both Hearse and Chapman appealed.

45
ISSUES: Had Cherry been guilty of contributory negligence? Did Chapman owe a duty of care to
Cherry to avoid placing Cherry (as a rescuer) in a position where he might be endangered? Was
Chapman’s negligence a cause of the death of Cherry?

FINDING: Cherry was a rescuer and not guilty of contributory negligence. There was no evidence to
prove that Cherry had been negligent while assisting Chapman. A duty of care was imposed on
Chapman to not place him in a situation where a rescuer could be injured while assisting him. The
death of Cherry was in part caused by Chapman’s negligence, as Cherry would not have been on the
road but for treating Chapman’s injuries.

QUOTE: The Court said: “[W]hether ... Dr. Cherry’s conduct involved any departure from the
standard which reasonable cares for his own safety demanded. To our minds this question can be
answered in only one way. He had, naturally enough, come to Chapman’s assistance; in the course
of attending to Chapman his attention must invariably have been diverted from the road and if, by
reason of this fact, he failed to see the oncoming car until it was too late to get out of its way it
would be quite wrong to hold that he was guilty of contributory negligence.” – page 119 (1961)
106 CLR 112. “What is important to consider is whether a reasonable man might foresee, as the
consequence of such a collision, the attendance on the roadway, at some risk to themselves, of
persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise
injured? ... But one thing is certain and that is that in order to establish the prior existence of a
duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events
following a defendant’s carelessness it is not necessary for the plaintiff to show that the precise
manner in which his injuries were sustained was reasonably foreseeable; it is sufficient for if it
appears that injury to a class of persons of which he was one might reasonably have been
foreseen as a consequence.” - page 121 (1961) 106 CLR 112

IMPACT: A person who is negligent may also owe a duty of care to any person who comes to rescue
or assist them. It is reasonable that a rescuer be compensated for taking the risk of helping a person
who has been negligent and is not punished for taking such a risk by not being compensated for any
losses they suffer.

46
47
 CONCLUSION
Through this project work I want to conclude that the Duty of Care is a very essential feature
of tort. The concept of duty of care required rigorous scrutiny by courts as it was developed
from time to time as seen in the two – stage test and the three stage test. The concept of duty
of care has been applied to numerous cases as explained in the case laws and the exhaustive
material that has been integrated into the project. Thus the nature and the scope of the duty of
care have expanded as far as the law of torts is concerned. Various tests have been applied to
determine the duty of care and as a consequence of that liability is placed in law of torts.
Thus the framework that the concept of duty of care holds now is very strong and is built
upon a strong foundation.

48
 BIBLIOGRAPHY

 www.wikipedia.com
 www.lawmentor.co.uk
 www.oxbridgenotes.co.uk
 www.e-lawresources.co.uk

Books:
 The Law of Torts – Ratanlal and Dhirajlal
 Law of Tort _- John Cooke

49